Category: Statutory Interpretation
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.
If It Looks Like a Bomb, and Explodes Like a Bomb . . . : The Court Finds Model Pipe Bomb Is a Destructive Device
Is a pipe bomb that exploded a “destructive device”? Though it may seem like a trick question, in United States v. Sheehan, 15-2028-cr (Lynch, J., joined by Judges Winter and Wesley), issued September 23, 2016, the Court spends most of its 44-page decision grappling with whether a bomb built and planted by the defendant was an “explosive bomb” (or a “combination of parts” from an explosive bomb could readily be assembled) such that it qualifies as a destructive device under Section 924. The Government (and common sense) prevailed: the Court concluded that, indeed, this exploding bomb was an explosive bomb.
Disjunction, Disjunction, What’s Your Function? Despite Statutory “or,” Court Holds Same Conduct May Support Both Modification and Revocation of Supervised Release
At issue in the Court’s September 22, 2016 decision in United States v. Harris, No. 15-1774 (Raggi, J., joined by Judges Newman and Calabresi) is a clever defendant’s embrace of the disjunctive in Section 3583 in urging that the statute governing revocation of supervised release permits a violation of release conditions to serve as the basis to revoke “or” modify supervision – but not both.
Evidence That Defendant Targeted Marijuana Dealer for Marijuana or Proceeds Satisfies Hobbs Act Interstate Commerce Element
The Hobbs Act makes it a crime to “obstruct, delay, or affect commerce or the movement of any article or commodity in commerce, by robbery . . . or attempt or conspire so to do.” 18 U.S.C. § 1951(a). “[C]ommerce” is defined under the Act to include “all . . . commerce over which the United States has jurisdiction.” Id. § 1951(b)(3). With its opinion in United States v. Lee, 11-2539, 11-2543, 11-2834, 11-4068, the Court (Cabranes, Pooler, Lynch) has made clear that evidence that a defendant targeted a marijuana dealer for his marijuana or marijuana proceeds is sufficient to satisfy the Hobbs Act’s interstate commerce element (see Op. at 13).
Court Rules That District Court Had Power to Adjudicate Supervision Violations Charged After Expiration of Supervision Term
In United States v. Edwards, the Court (Sack, Raggi, Droney) affirmed a judgment of the District Court (Chatigny, J.) revoking the supervised release of Defendant-Appellant Owen Edwards and sentencing Edwards to 24 months’ imprisonment based on four supervision violations. Edwards had raised two issues on appeal: first, whether the District Court had jurisdiction to revoke his supervised release based on violations charged after the scheduled expiration of his term of supervision; and second, whether the evidence was sufficient to support the particular charge that Edwards had committed a crime while under supervision.
In United States v. Tagliaferri, 15-536 (May 4, 2016) (Leval, Pooler, Wesley), the Court issued a per curiam order affirming Defendant’s conviction for violations of the Investment Advisors Act of 1940, 15 U.S.C. § 80b-6 (the “1940 Act”), entered by the United States District Court for the Southern District of New York (Abrams, J.). In the underlying appeal, the Defendant raised several challenges to his conviction by a jury for violations of the 1940 Act, as well as securities fraud, wire fraud, and violations of the Travel Act.
Hobbs Act Robbery a Categorical “Crime of Violence” and Predicate to Federal “Murder-by-Firearm” Statute
In United States v. Hill, 14-3872-cr (August 3, 2016) (Jacobs, Livingston, Droney), the Court affirmed Defendant’s conviction in the Eastern District of New York (Matsumoto, J.) pursuant to 18 U.S.C. § 924(j)(1) for a firearm-related murder committed in the course of a “crime of violence.”
Can the Government employ a domestic search warrant to compel disclosure of communications stored on servers located outside of the United States? In its much anticipated decision in In the Matter of a Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corporation, 14-2985 (“Microsoft”), a Second Circuit panel (Lynch, J., Carney, J., Bolden, J., sitting by designation) answered that it cannot.
Defining the Terms: What Constitutes a “Federally Insured Financial Institution” Under 18 U.S.C. § 1344 or a “Bank” Under 18 U.S.C. § 1014?
In United States v. Bouchard, 14-4156, the Court (Parker, J., Lynch, J., and Lohier, J.) reversed the conviction of defendant Michael Bouchard after finding that the Government’s evidence only showed that Bouchard had made false statements in order to defraud BNC Mortgage (“BNC”), a mortgage lender that did not fall within the Title 18 definition of a “federally insured financial institution” or “bank” as would be required by statute for a conviction.
Court of Appeals Affirms Conviction of Former Connecticut Governor Based On Expansive Interpretation of Sarbanes-Oxley
In United States v. Rowland, No. 15-985, the Second Circuit (Winter, Chin, Carney) rejected challenges by former governor of Connecticut John Rowland to both his conviction and sentence on seven counts of violating campaign finance laws and falsifying records. In so doing, the panel issued an important decision regarding the interpretation of 18 U.S.C. § 1519, a provision of the Sarbanes-Oxley Act, which prohibits the falsification of documents for the purpose of misleading government investigators. The Rowland decision tacks in a different direction from the Supreme Court’s recent decision in Yates v. United States, 135 S. Ct. 1074 (2015), in which the Court narrowed the reach of this statute by adopting an interpretation rooted in the statute’s purpose. Rowland, by contrast, seems to take a broader approach.
Sentence Reduction to be “Based On” Most Recent Sentencing Range Applied to Defendant, Not Original Range in Effect at Initial Sentencing.
In United States v. Derry, No. 15-1829 (June 2, 2016) (RSP, BDP, DAL), the Second Circuit confronted a sentencing issue which has garnered increased attention in light of multiple recent amendments to the U.S. Sentencing Guidelines to reduce the length of prison sentences associated with certain drug offenses: When a defendant is sentenced under one version of the Guidelines and has his sentence reduced under 18 U.S.C. § 3582(c)(2) when his “sentencing range . . . has been subsequently lowered by the Sentencing Commission,” can he receive yet another reduction based on another subsequent amendment to the Guidelines which results in a lower range than was applied at the original sentencing but has no effect on the range that was applied at resentencing? The short answer: no.
Second Circuit Affirms Honest Services Fraud Conviction Amidst Doubt About The Future Viability Of Honest Services Fraud
Does the act of paying money to a party official to allow a candidate merely to run for public office constitute bribery? And does a party official owe a “fiduciary duty” to his party to open its ticket to candidates from opposing parties only sparingly, such that an exchange of money for a place on the party ticket supports a conviction under the honest services fraud statute (18 U.S.C. § 1346)?