by | Jan 24, 2020 | Ed Sapone’s Decisions of the Week

As CA2’s prior reversals of former NYS Senate Majority Leader Dean Skelos (707 Fed.Appx. 733 (2017)), and House Speaker Sheldon Silver (864 F.3d 102 (2017), had previously shown, prosecuting politicians for bribery schemes, and instructing juries on the parameters of what distinguishes legal influence peddling for a benefit from unlawful conduct, is a sometimes difficult and still-evolving process. This week’s second reversal in Silver is unlikely to add much clarity, particularly on the issue of the “as opportunities arise” theory of extortion under color of right and honest services fraud.

This was also an interesting week in NY state’s appellate courts, where AD2’s Presiding Justice Scheinkman issued three interlocutory “decisions” of protective orders issued under the new discovery laws.

Second Circuit

In United States v. Silver, CA2 reversed in part and affirmed in part, former NYS Assembly Speaker Sheldon Silver’s honest services mail fraud (two counts), honest services wire fraud (two counts), Hobbs Act extortion (two counts), and money laundering (one count) convictions following a jury trial before SDNY Judge Valerie E. Caproni. CA2 found that the court’s honest services fraud and Hobbs Act extortion jury instructions were erroneous, but that the error was harmless as to three of seven total counts. CA2 also found that, measured by the correct standard, the evidence was insufficient as to three of the erroneously-instructed counts, and dismissed those counts.

Silver was convicted in 2016 of accepting illegal bribes in violation of the mail and wire fraud statutes and the Hobbs Act, and laundering the proceeds of those offenses. CA2 reversed that conviction, finding that Judge Caproni’s jury instructions failed to meet the narrowed definition of “official act” set forth in McDonnell v. United States, 136 S.Ct. 2355 (2016). The Government tried Silver a second time, and the jury again convicted him on all seven counts. Yes, SDNY juries can be a tough crowd.

Silver raised two principal issues on appeal, both challenging the jury instructions. First, he argued that Hobbs Act extortion under color of official right and honest services fraud require evidence of an “agreement,” i.e., a meeting of the minds, between the alleged bribe payor and receiver. Second, he argued that the “as the opportunities arise” theory of bribery that CA2 recognized in United States v. Ganim, 510 F.3d 134, 142 (2d Cir. 2007) did not survive McDonnell. Silver argued that McDonnell required identification of the particular act to be performed at the time the public official accepts a payment or makes a promise. CA2 disagreed with Silver’s first theory, but agreed, in part, with the second.

While Silver was speaker of the Assembly, he worked part-time as a practicing lawyer. The government alleged that Silver used his law firm work as a vehicle to exploit his elected position for unlawful personal gain. According to the government, Silver arranged two separate bribery schemes in which he received referral fees from law firms in exchange for taking official actions. In one scheme, Silver performed official acts beneficial to a medical doctor who referred mesothelioma patients to Silver’s law firm (the “Mesothelioma Scheme”). In the other, Silver performed official acts beneficial to two real estate developers who had hired a different law firm that paid referral fees to Silver (the “Real Estate Scheme”). The two alleged schemes generated more than $3.5 million in referral fees for Silver. The government also charged that Silver engaged in money laundering by investing the proceeds of the Mesothelioma Scheme and the Real Estate Scheme into assorted investment vehicles.

CA2 rejected Silver’s argument that Hobbs Act extortion under color of right and honest services fraud required a meeting of the minds. No quid pro quo agreement was required between Silver and the alleged bribe payors: neither offense required that the bribe payor and receiver shared a common corrupt intent as to the official acts procured by the payment. Because no meeting of the minds was required, the jury instructions as given at to Hobbs Act extortion adequately explained that the government was required to prove that “the extorted party was motivated, at least in part, by the expectation that as a result of the payment, Mr. Silver would exercise official influence or decision-making for the benefit of the extorted party,” that Silver was “aware of th[is] motivation,” and that Silver “knowingly and intentionally sought or received property . . . in exchange for the promise or performance of official action.” As to honest services fraud, the instructions adequately conveyed that “because the intent of the party giving the thing of value may be different from the intent of the party receiving the thing of value[,] … the government has to prove only that Mr. Silver—not the bribe giver—understood that, as a result of the bribe, he was expected to exercise official influence or take official action for the benefit of the payor and, at the time the bribe was accepted, intended to do so.”

CA2 disagreed with Silver that McDonnell eliminated the “as opportunities arise” theory of extortion under color of right and honest services fraud, but found that the court’s instructions erroneously failed to convey its requirements. CA2 found that the “as opportunities arise” theory required identification of a particular question or matter to be influenced. In other words, it required that a public official must do more than promise to take some or any official action beneficial to the payor as the opportunity to do so arises; he must promise to take official action on a particular question or matter as the opportunity to influence that same question or matter arises.

Here, the district court’s instructions were erroneous because they required the jury to find only that Silver understood, at the time that he accepted any quid, that he was expected to exercise official influence or take official action for the benefit of the payor. An illegal quid pro quo under the “as the opportunities arise” theory of bribery requires more than what the government presented in this case: an open-ended promise to perform official actions “for the benefit of the payor.”

The jury instructions were erroneous because the required quid pro quo was too open-ended. The instructions failed to convey that Silver could not be convicted of honest services fraud unless the government proved that, at the time the bribe was accepted, Silver promised to take official action on a specific and focused question or matter as the opportunities to take such action arose. With respect to Hobbs Act Extortion, the instructions erroneously failed to convey that the government was required to prove that, at the time Silver accepted the extorted property, he understood that he was expected, in exchange for those payments, to take official action on a specific and focused question or matter as the opportunity to do so arose.

CA2 found that, with respect to the Mesothelioma Scheme, the jury could have erroneously convicted Silver based on a finding that he believed he was expected to take official action to benefit the payor in any way in the future. Because this was one of those “rare occasions” where it was undisputed that the evidence would be insufficient to prove the elements of the charges beyond a reasonable doubt to a properly instructed jury, CA2 dismissed those counts.

With respect to the Real Estate Scheme, however, CA2 found harmless the court’s failure to instruct the jury that Silver must have believed that the developers sought his influence on “focused and concrete” matters. In other words, a rational, properly instructed jury would have found that Silver possessed the required mens rea at the time he accepted the payment.

CA2’s decision can be found here.

In United States v. Arce, in a summary order, CA2 affirmed defendant’s SDNY conspiracy to distribute and possess with intent to distribute cocaine convictions following a jury trial before Judge Naomi Reice Buchwald. CA2 rejected defendant’s claims that a delayed production of Rule 16 discovery required a reversal.

According to defendant, despite a March 2017 representation by the government that it had produced all Rule 16 discovery, in February 2018—almost a year later and shortly before trial was scheduled to begin—the government ambushed the defense with additional packages of Rule 16 material. Defense counsel sought preclusion of the evidence contained in the February 2018 productions, or alternatively, a continuance of trial. The district court adjourned trial for three weeks for defense counsel to review the evidence; defense counsel did not object.

CA2 found no Rule 16 violation, because the evidence was “promptly produced” to counsel as it was discovered. Following its last production, defense counsel had more than one month to review the materials, and did not claim that it had insufficient time to do so. Even if there had been a Rule 16 violation, the continuance was an appropriate discretionary remedy. As defendant could not articulate how he was prejudiced by any delayed production, reversal was unwarranted.

CA2’s decision can be found here.

In United States v. Miller, in a summary order, CA2 affirmed defendant’s EDNY wire fraud convictions. CA2 remanded only to allow Judge Allyne R. Ross to correct the written judgment ordering restitution to conform it to the amount orally pronounced at the time of sentence, which, in any event, appeared to have been the correct amount.

CA2’s decision can be found here.

In United States v. Saunders, in a summary order, CA2 affirmed defendant’s EDNY conviction for discharging a firearm during a crime of violence (10-year mandatory consecutive time) and the 144-month sentence imposed by Judge Saundra J. Feuerstein. CA2 rejected defendant’s contention that the sentence was procedurally and substantively unreasonable for, among other reasons, that it improperly considered his age when it sentenced him.

Defendant argued on appeal that the district court improperly considered his age in sentencing him to 144 months of imprisonment, rather than the 120 months that his codefendants received, and, in doing so, created an impermissible sentencing disparity. See 18 U.S.C. 3553(a)(6).

CA2 disagreed, finding that the district court did not abuse her discretion in finding that the codefendants, both of whom were close to 10 years younger than defendant, were entitled to a lighter sentence because of their youth. Defendant, who was 31 years old at the time of sentencing, did not have that argument at his disposal.

CA2’s decision can be found here.

Appellate Division, First Department

In People v. Guillen, AD1 held defendant’s appeal of his NY County attempted murder conviction in abeyance, remitting for a hearing. AD1 found that supreme court improvidently exercised its discretion when it denied defendant’s CPL § 330.30(2) motion, which had alleged misconduct by two jurors, without a hearing.

As to the first juror, the foreperson, the People’s trial prep assistant disclosed that some time after the trial and before sentencing he received a handwritten note in the mail from the foreperson, stating: “Now that the trial is over . . .” (ellipsis in original), followed by the juror’s name and contact information. The note also included a crossed-out phrase from which it could be inferred that the original version of the note had been written during the trial.

AD1 found that, under the circumstances, the note itself was sufficient evidence to raise an issue of fact about whether the foreperson’s apparent romantic interest in the trial prep assistant prevented her from deliberating fairly.

Finally, AD1 found that the second juror had a sufficiently close relationship with a witness to warrant a hearing as to whether that juror engaged in misconduct by failing to disclose the relationship to the court.

AD1’s decision can be found here.

Appellate Division, Second Department

In three cases, People v. BeatonPeople v. Reyes-Fuentes, and People v. Bonifacio, AD2’s Presiding Justice Alan D. Scheinkman had the first opportunity to utilize the new appellate provisions of the protective order provisions of the new discovery laws.

CPL § 245.70(1) provides that, upon a showing of good cause by either party, the court may limit disclosure in a protective order. CPL § 245.70(6) provides a right of interlocutory review that is unique in New York criminal law: a party that has unsuccessfully sought or opposed a protective order can seek expedited review of the request from a single appellate division justice. Not only is the right to interlocutory review unique, but the delegation of authority to a single justice is also unique. It is unclear whether this provision runs afoul of the state constitution which appears to require that at least three judges concur in any appellate division decision. See NY Const. Art. 6, § 4(b). The last sentence of § 245.70(6)(c) may be an attempt to cure this infirmity, stating that the interlocutory review, “shall not affect the right of a defendant, in a subsequent appeal from a judgment of conviction, to claim as error the ruling reviewed.”

Putting aside the ultimate questions of the interlocutory review’s legality, which do not appear to have been raised, Justice Scheinkman found in Bonifacio and Reyes-Fuentes that Nassau County Supreme Court had erred in granting the protective orders ex parte, without permitting the defendant to participate in the hearing of the motion. In each case it remitted to afford defendants an opportunity to be heard on the merits of the application.

In Beaton, Justice Scheinkman found that the Richmond County protective order had been improvidently granted, at least in part because it was not supported by an affidavit from anyone with direct knowledge of the circumstances underlying the People’s application.

Justice Scheinkman’s decisions can be found here: BeatonReyes-Fuentes, & Bonifacio.


A lull in CA2 this week with only a handful of summary orders. Although there was relief to defendants in each of them, it was essentially of the housekeeping variety. There was a focus on special conditions of release in Fuller and Hardnett, and a partial crime-of-violence reversal in Rodriguez that was preordained by the Circuit’s prior decision in Barrett.

In the state courts, there was a rare Article 78 double jeopardy writ of prohibition granted by AD1 in Matter of Bannister, and a rare ‘weight of the evidence’ dismissal in an I.D. case by AD2 in James.

Second Circuit

In United States v. Fuller, in a summary order, CA2 affirmed in part, and vacated in part, the 97-month prison sentence imposed by EDNY Judge Brian M. Cogan, following defendant’s guilty plea to possession of child pornography. CA2 found that the sentence was neither substantively nor procedurally unreasonable, but remanded the case to the district court to correct a discrepancy between a special condition of release orally imposed at sentencing and one contained in the written judgment.

Special Condition #9 restricted defendant’s access to the internet during his post-incarceratory period of supervised release. At sentencing, the court stated that condition as, defendant “will not go to any dating websites or anything else that seeks to match people together for establishing personal relationships.” In the written judgment, the special condition was stated differently, “[t]he defendant may not access any website that permits persons under the age of 18 to be registered users for the purpose of establishing personal relationships with other users; allow minors to post profiles that provide information about themselves; or allows direct or real time communication with other users.”

CA2 found that the written judgment did more than just clarify the terms of the spoken sentence, finding that it modified it. Unlike the spoken sentence, the written judgment prohibited defendant from accessing any website that allows for direct or real-time communication with other users, not just those that enable users to form personal relationships.

CA2 also found that a special condition that required defendant to cooperate with the Department of Probation’s Computer and Internet Monitoring program might involve a deprivation of liberty greater than necessary, but withheld consideration until a date closer to the start of defendant’s term of supervised release. CA2 suggested that, at that time, if appropriate, defendant could bring a proceeding in the district court under § 3583(e)(2) if appropriate.

CA2’s decision can be found here.

In United States v. Rodriguez, in a summary order, CA2 affirmed defendant’s EDNY convictions for conspiracy to commit Hobbs Act robbery (court 1), and conspiracy to distribute narcotics (count 2). But CA2 reversed the  conviction for brandishing a firearm during and in relation to a “crime of violence” (§ 924(c)(3))  and/or narcotics trafficking (§ 924(c)(1)(A)(ii)(count 3), and remanded for resentencing on the affirmed counts, without the 7-year consecutive sentence for the § 924(c) conviction.

In 2017, CA2 had affirmed defendant’s conviction following a jury trial before Judge Sandra L. Townes. See United States v. Martinez, 862 F.3d 223 (2017). The jury had expressly found that that the gun referred to in count 3 was brandished in connection with the robbery conspiracy. Defendant was sentenced to 188 months of imprisonment on counts 1 and 2, and to a consecutive seven years on count 3. Defendant’s sole contention on that appeal was a statute-of-limitations challenge.

Defendant petitioned the Supreme Court for certiorari, challenging CA2’s rejections of his statute-of-limitations contentions, and additionally contending that the residual clause of § 924(c)(3) was void for vagueness. The Supreme Court granted the petition, vacated CA2’s judgment, and remanded for further consideration, in light of its decision in United States v. Davis, 588 U.S. _, 139 S. Ct. 2319 (2019), which held that the residual clause in § 924(c)(3) is unconstitutionally vague.

In a similar post-Davis remand in United States v. Barrett, 937 F.3d 126 (2d Cir. 2019), CA2 held that Davis precluded a conclusion “that [a] Hobbs Act robbery conspiracy crime qualifies as a § 924(c) crime of violence,” 937 F.3d at 127. CA2 agreed with the parties here that, while defendant’s convictions for robbery conspiracy and drug conspiracy should be affirmed in all respects, his convictions and sentence with respect to the § 924(c) count must be vacated pursuant to Davis and Barrett, and the matter remanded for resentencing on the other counts without the § 924(c) consecutive sentence.

CA2’s decision can be found here.

In United States v. Hardnett, in a summary order, CA2 affirmed defendant’s NDNY convictions for making false claims and aggravated identity theft, and the 30-month sentence with 3 years of supervised release. But CA2 vacated the special condition requiring that defendant abstain from all use of alcohol, finding that, as the government conceded, the district court had not been presented with any evidence that defendant had ever seriously abused alcohol, or any evidence that the underlying crime involved the use of alcohol.

CA2’s decision can be found here.

Appellate Division, First Department

In Matter of Bannister v. Wiley, AD1 granted petitioner’s Article 78 petition which sought a writ of prohibition barring any further prosecution on the grounds that it would violate double jeopardy. NY County Supreme Court Justice Maxwell Wiley had sua sponte granted a mistrial without petitioner’s consent, and manifest necessity was absent.

AD1 found that it was an abuse of discretion to declare a mistrial to accommodate a juror’s weekend travel plans, that included a Friday, about which the juror belatedly informed the court during deliberations. The court, as requested by defendant, could have directed the juror to report for deliberations the following day. The court also failed to confirm that the jury was hopelessly deadlocked at the time.

AD1’s decision can be found here.

Appellate Division, Second Department

In People v. James, AD2 reversed defendant’s Orange County first-degree robbery conviction, finding that the verdict convicting him based on the testimony of a single eyewitness was against the weight of the evidence.

In July 2010, the then 22-year-old complainant allegedly was robbed at knifepoint by someone identified by her as “Manny,” whom she had met approximately an hour earlier. The complainant described Manny as a light-skinned black male wearing a brown and white striped shirt and jeans, approximately 20 years old, and around six feet tall. The defendant, who was a 33-year-old black male, five feet eight inches tall, wearing shorts and carrying a red and blue striped shirt, was arrested several minutes after the incident following a show-up identification procedure. At that show-up, the complainant initially failed to identify the defendant. But then the police, standing on either side of the defendant, draped the shirt over defendant’s chest. (Talk about suggestiveness!) Only at that point did the complainant identify the defendant as the person who had robbed her.

Following a 2011 jury trial, defendant was convicted of the robbery. AD2 later reversed that conviction finding that the show-up was unduly suggestive.

Following an independent source hearing, defendant was tried again and convicted. AD2 reversed on weight-of-the-evidence grounds. Outlining the problematic evidence, AD2 stated that, at the second trial, the complainant consistently had difficulty remembering details of the crime. She could not remember how she described the defendant, and when asked how she recognized him, she stated, “[b]y his shirt.” The description she provided of the perpetrator shortly after the incident did not match, in several ways, the defendant’s actual physical characteristics and appearance. At the time of his arrest, several minutes after the incident, the defendant possessed neither the money nor the personal items which had allegedly been taken from the complainant.

AD2’s decision can be found here.

In People v. Reyes, and People v. Nash, individual AD2 judges continued to employ their new powers to review protective orders granted under the new discovery laws.

In Nash, Presiding Judge Scheinkman approved a protective order in a Kings County murder prosecution, which allowed the delayed disclosure of discovery material until only one week before the trial began. Although the protective order proceeding was ex parte, defense counsel knew that the proceedings were taking place, but voiced no objection. Although Judge Scheinkman stated that the better practice would have been to allow defense counsel to see the portions of the People’s written application that contained legal argument or other matter that would not reveal the information sought to be protected, it found the protective order valid, because defense counsel had notice of the protective order application and the opportunity to make arguments with respect to it.

In Reyes, Judge Leventhal vacated a Kings County protective order, because the defense had not been permitted an opportunity to be heard on the People’s application for the order.

Judge Scheinkman’s decision in Nash can be found here, and Judge Levanthal’s decision in Reyeshere.


A very busy week in CA2 with five precedential opinions. In Smith, CA2 dispensed with the need for a written statement of reasons for violations of supervised release and probation revocation proceedings. In DiMartino, CA2 affirmed the denial of a post-trial competency hearing for a Sovereign Citizen defendant. In Tabb, CA2 upheld the district court’s finding that defendant’s prior convictions of NY PL§120.05(2) and 21 U.S.C. §846, constituted predicate offenses for application of U.S.S.G. §4B1.1’s career offender sentencing enhancement. Hightower, held that the exclusionary rule did not apply in supervised release revocation proceedings. And in Pilcher, CA2 addressed the appealability of a motion to proceed under a pseudonym.

There were also summary orders vacating sentences in Climico and Lin following remands from the Supreme Court in light of its decision in Davis.

In contrast, it was a relatively quiet week in the state courts, with only one reversal each in the First (Hayes) and Second (Kluge) Departments.

Second Circuit

In United States v. Smith, CA2, through what it described as its “mini-en banc process,” affirmed defendant’s NDNY sentence following a violation of supervised release. In doing so, CA2 overruled its prior decision in United States v. Lewis, 424 F.3d 239, 244-45 (2d Cir. 2005), which had held that § 3553(c)(2), requiring a written statement of reasons for a sentence, applies in supervised release and probation revocation proceedings.

Defendant originally pleaded guilty to two counts of distributing heroin (21 U.S.C. §§841(a)(1) & (b)(1)(C)) and was sentenced to six months’ imprisonment to be followed by six years of supervised release. Shortly after he was released, defendant violated the terms of his supervised release by, among other things, engaging in new criminal activity. A New York state court jury convicted him of weapons possession and reckless endangerment, and sentenced him to twelve years’ imprisonment.

At the district court proceeding following the state-court conviction, defendant admitted that he’d violated the terms of his supervised release. The guidelines range for the violation was 4 to 10 months of imprisonment, with a statutory maximum sentence of 3 years of imprisonment. The court sentenced defendant to two years to run consecutive to the New York state prison sentence. The court orally explained its reasons, focusing on defendant’s use of a firearm.

On appeal, defendant challenged, among other things, the district court’s failure to provide an adequate written statement of reasons for the sentence.

CA2 found that a written statement of reasons (“SOR”) was unnecessary for a violation of supervised release following the 2010 amendments to § 3553(c)(2), and the fact that the Judicial Conference had not issued, and the Sentencing Commission had not approved, a statement or reasons form.

Because it was overruling a prior precedent which had required a statement of reasons, CA2 used its mini-en banc procedure, which it described as circulating the opinion to all active members of the Court before filing. With no objections, CA2 issued its opinion.

CA2 also found that the sentence was procedurally and substantively reasonable.

CA2’s decision can be found here.

In United States v. DiMartino, CA2 affirmed defendant’s District of Connecticut tax-offense convictions, and the 70-month sentence imposed, finding that the district court did not abuse its discretion when it denied defendant’s post‐trial request for a competency hearing.

Defendant, a successful insurance broker, was convicted for his multi‐year failure to pay taxes and for his deception and obstruction of the IRS‐‐conduct inspired by the Sovereign Citizen movement, a loosely affiliated group who “‘follow their own set of laws’ and, accordingly, ‘do not recognize federal, state, or local laws, policies or regulations’ as legitimate.”

Defendant represented himself at trial. After trial and before sentencing, he retained counsel who moved for a hearing to determine whether he had been competent to stand trial. Counsel argued that defendant’s “bizarre” conduct before and during trial raised a series of red flags impugning his mental fitness, and submitted a report from a psychologist who had interviewed defendant and examined part of the trial record.

The district court held a Daubert hearing to enable it to assess whether the expert testimony was reliable. The district court ruled that: (1) the psychological report‐‐which concluded that defendant was suffering from a delusional disorder, but largely ignored the Sovereign Citizen context‐‐was unreliable; and (2) defendant’s behavior, observed by the court before and during trial, indicated that he understood the charges against him and participated meaningfully in his defense.

CA2 agreed with the district court that the psychologist’s report was unreliable, and that the denial of a competency hearing was an appropriate exercise of discretion. The record supported the conclusion that defendant’s words and actions reflected his anti‐government political views and legal theories rather than an inability to understand the proceedings against him.

CA2’s decision can be found here.

In United States v. Tabb, CA2 affirmed the 120-month sentence imposed by SDNY Judge Alvin Hellerstein following defendant’s conviction for aiding and abetting the distribution of crack cocaine and designation as a career offender. CA2 rejected defendant’s contentions that his prior convictions for: (1) attempted assault in the second degree under NY Penal Law § 120.05(2) and (2) conspiracy to possess with intent to distribute narcotics under 21 U.S.C. § 846, were predicate offenses for purposes of the Guidelines’ career offender sentencing enhancement.

Defendant’s advisory Guidelines range without the career offender enhancement would have been 33 to 41 months of imprisonment. With the enhancement, his Guidelines range increased to 151 to 188 months of imprisonment.

Defendant argued that he should not have been classified as a career offender under § 4B1.1 because he did not have two predicate felony convictions involving the distribution of controlled substances or crimes of violence.

Defendant argued that attempted assault in the second degree under NY Penal Law § 120.05(2) was not a predicate conviction because it was not a crime of violence within the guidelines § 4B1.2 Force Clause. CA2 disagreed.

Under the Force Clause (also sometimes referred to as the “Elements Clause”), a prior conviction qualifies as a “crime of violence” if it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” A person is guilty of second‐degree assault under NY Penal Law § 120.05(2) when, “[w]ith intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.”

Section § 4B1.2’s force clause is identical to language in two other statutes: the Armed Career Criminal Act (“ACCA”), and 18 U.S.C. § 16(a). CA2 stated that the identical language of the elements clauses of 18 U.S.C. § 16(a) and the ACCA meant that cases interpreting the clause in those statutes are highly persuasive in interpreting U.S.S.G. § 4B1.2. In United States v. Walker, 442 F.3d 787 (2d Cir. 2006) (per curiam), CA2 had held that attempted assault in the second degree is “categorically” a violent felony under the ACCA because “[t]o (attempt to) cause physical injury by means of a deadly weapon or dangerous instrument is necessarily to (attempt to) use ‘physical force,’” under any reasonable interpretation of that term. CA2 found no reason to find a different result under § 4B1.2.

CA2 also found that defendant’s conviction for conspiracy to distribute and possess with intent to distribute crack cocaine in violation of 21 USC § 846 was a predicate controlled substance offense under § 4B1.1. Application Note 1 of the commentary clarifies that controlled substance offenses “include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” CA2 rejected defendant’s argument, based on holdings in the Sixth and DC Circuits, that Application Note 1 conflicted with the text of § 4B1.1 by including crimes that the guidelines text exclude, i.e., conspiracies.  CA2 had previously dismissed this argument in United States v. Jackson, 60 F.3d 128 (2d Cir. 1995), and, sitting as a three-judge panel, was not free to revisit the decision here.

CA2’s decision can be found here.

In United States v. Hightower, CA2 affirmed the revocation of defendant’s supervised release, after SDNY Judge Jed S. Rakoff found that defendant had violated the conditions of release by committing a state crime. In doing so, CA2 held that the exclusionary rule does not apply in revocation proceedings.

In April 2009, defendant was sentenced to 110 months’ imprisonment and two years of supervised release following his conviction for being a felon in possession of a firearm. The mandatory conditions of his supervised release included the requirement that he not commit another federal, state, or local crime. In October 2017, the US Probation Office provided the district court with an amended violation report, charging defendant with violating the terms of his release by (1) possessing a loaded firearm in violation of NY Penal Law § 265.03(3) and (2) committing rape in violation of NY Penal Law § 130.35(2). Defendant denied the violation specifications.

By 2018, the state charges had been dismissed. Nevertheless, the district court proceeded to an evidentiary hearing on the violations. The evidence at the hearing showed that three plainclothes officers approached defendant who was walking through a park that was closed at the time. After following him for a short time, the officers told him to stop and remove his hand from his pocket. Although defendant initially complied, he put his hand back into his pocket and refused to comply again. Officers then frisked him, recovering a firearm. The district court concluded that the evidence was sufficient to prove by a preponderance of the evidence that defendant had violated his supervised release. While the recovery of the gun may have been the fruit of an unlawful stop, the court concluded that the exclusionary rule did not apply in violation of supervised release proceedings.

CA2 agreed. Citing a number of other contexts in which the exclusionary rule did not apply, including before the grand jury, and in civil tax and deportation proceedings, CA2 ruled that it did not apply in revocation proceedings. CA2 relied, in large part, on the Supreme Court’s decision in Pennsylvania Board of Probation and Parole v. Scott, which held that the exclusionary rule does not apply in state parole revocation proceedings. 524 U.S. 357, 369 (1998). By CA2’s reasoning, the deterrent effects of the exclusionary rule are significantly outweighed by the costs involved in applying the rule in this context.

CA2’s decision can be found here.

In United States v. Pilcher, CA2 affirmed the Vermont District Court’s denial of defendant’s motion to file a habeas petition under a pseudonym. CA2 concluded that, although the ruling was immediately appealable as a collateral order, the denial was not an abuse of discretion.

Defendant, pro se, filed a § 2255 motion under seal challenging conditions imposed on him as a registered sex offender and certain special conditions of supervised release following his guilty plea to one count of possession of child pornography. The magistrate judge construed the application as a formal motion and denied it. The magistrate judge noted that defendant was “not a plaintiff but a person who ha[d] plead[ed] guilty in open court and been sentenced for the commission of a crime.” The district court affirmed.

CA2 held, as a matter of first impression in a precedential opinion, that the order denying defendant’s motion to proceed under a pseudonym was appealable under the collateral-order doctrine, because (1) the order conclusively determined the issue of whether defendant could proceed under a pseudonym; (2) the issue was completely separate from the merits of his § 2255 motion; and (3) it would be effectively unreviewable on appeal from final judgment on his § 2255 motion.

As revealed by the title of the decision, CA2 also found that it was not an abuse of discretion to deny anonymity. CA2 found that it was “clear” that the magistrate judge considered the proper legal principles governing the motion, including a presumption in favor of public access to court proceedings and records, and the exceptions to that presumption, all set forth in its prior decision in Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185 (2d Cir. 2008).

CA2’s decision can be found here.

In United States v. Funk, in a summary order, CA2 vacated two special conditions of supervised release imposed by EDNY Judge Joan M. Azrack following defendant’s convictions for coercion and enticement of a minor to engage in sexual activity, finding that the court had not sufficiently explained why they were necessary.

Defendant challenged two special conditions imposed by the district court on the grounds that they were overbroad and not reasonably related to the goals of sentencing: (1) a condition prohibiting him from associating with minors unless he was accompanied by a responsible adult and the association was preapproved by a probation officer; and (2) a condition prohibiting him from electronically viewing adult pornography as defined by 28 USC § 2256.

CA2 agreed that the district court had not adequately explained the need for the special conditions. The rationale for the associational prohibition’s twin requirements for defendant to have both a responsible adult present and a probation officer’s preapproval—was not immediately apparent from the record. Nor was it immediately apparent on the record why, given defendant’s enticement of a minor, he should be prohibited from electronically viewing legal adult pornography.

CA2 remanded with instructions that the district court provide a specific statement of reasons for the challenged special conditions.

CA2’s decision can be found here.

In United States v. Carrano, in a summary order, CA2 affirmed defendant’s SDNY conviction for conspiracy to violate the animal welfare act and the 14-month prison sentence with 3 years’ supervised release imposed by Judge Sidney H. Stein. CA2 rejected defendant’s contentions that (1) his trial attorneys’ performance was constitutionally deficient for failing to adequately review evidence and prepare defense witnesses; (2) that the district court erred by applying a four-point leadership enhancement at sentencing; and (3) that the district court exceeded its discretion by imposing a special condition prohibiting defendant from possessing live game fowls during his supervised release.

CA2 found, without citing anything specific, that the record permitted resolution of defendant’s ineffective assistance of counsel claims “beyond any doubt.”

As to defendant’s challenge of the four-point leadership enhancement, CA2 found that the district court properly concluded that the conspiracy involved five or more participants, and that defendant was an organizer or leader based on his executive role in the national game fowl organization—specifically, by using its Facebook portal to promote cockfighting and disseminate ways to avoid law enforcement detection.

As to the special condition, CA2 found that the district court acted well within the bounds of discretion when it imposed the special condition preventing defendant from possessing live game fowls, given his participation in a multi-year conspiracy to engage in and promote cockfighting.

CA2’s decision can be found here.

In United States v. Ngono, in a summary order, CA2 affirmed defendant’s SDNY convictions for theft of government funds, aggravated identity theft, wire fraud, student financial aid fraud, and immigration fraud, after a jury trial before Judge Deborah A. Batts. Defendant represented himself pro se at trial with the assistance of standby counsel. In affirming defendant’s conviction, CA2 rejected his contentions that the district court unreasonably reduced his summation duration from one hour to 15 minutes and that the jury instructions were improper.

CA2 found that the district court properly interrupted defendant’s summation on several occasions when defendant attempted to discuss details that were irrelevant or were not a part of the evidence. When defendant refused to follow the court’s instructions limiting him to the evidence introduced at trial, it was appropriate to direct him to finish his closing arguments within 15 minutes.

CA2 also rejected defendant’s erroneous-jury-instruction claims, including, among others, that the court plainly erred by refusing to charge the affirmative defense of coercion, and that it was wrong to instruct in a way that permitted simultaneous convictions for fraud and theft.

CA2’s decision can be found here.

In Batista v. United States, in a summary order, CA2 affirmed EDNY Judge Dora Irizarry’s order denying defendant’s § 2255 motion to vacate, set aside, or correct his sentence, on ineffective-assistance-of-counsel grounds, finding, among other things, that the declarations of his prior counsel were not defective merely because they did not contain the precise phrase “true and correct,” and that the record did not support his allegations that his trial counsel ineffectively represented his interests during plea negotiations.

CA2’s decision can be found here.

In United States v. Climico, and United States v. Lin, in summary orders, CA2 vacated defendant Climico’s SDNY conviction for use of a firearm in connection with a crime of violence, before Chief Judge Colleen McMahon, and defendant Lin’s conviction for firearm related murder during and in relation to a crime of violence, before former Judge Miriam Cedarbaum, both in violation of 18 USC § 924. CA2’s decisions followed remands from the Supreme Court for reconsideration in light of United States v. Davis, 129 S.Ct. 2319 (2019).

In Climico, CA2 found that defendant’s conviction for use of a firearm in connection with a “crime of violence,” where conspiracy to commit Hobbs Act robbery was the crime of violence, was no longer tenable in light of Davis, and United States v. Barrett, 937 F.3d 126, 127 (2d Cir. 2019), which had precluded a finding that Hobbs Act robbery conspiracy qualifies as a § 924 crime of violence under that statute’s residual clause.

In Lin, CA2 found that its prior affirmance of defendant’s § 924(j) conviction on the ground that defendant’s extortion scheme was a crime of violence under § 924(c)(3)(B)’s residual clause, was no longer tenable in light of Davis.

CA2’s decision in Climico can be found here, and Lin here.

In United States v. Matias, in a summary order, CA2 affirmed defendant’s conviction for possession with intent to distribute and distribution of twenty-eight grams or more of cocaine base and the 235-month prison sentence imposed by EDNY Judge Sandra J. Feuerstein. CA2 also affirmed the 60-month consecutive sentence imposed on defendant for violating the terms of his supervised release for a prior federal narcotics conviction by being arrested in the subsequent federal case.  In doing so, CA2 rejected defendant’s contention that it was procedurally unreasonable to impose the sentences consecutively.

During the sentencing, the government incorrectly stated that the sentences were required to run consecutively. Defendant argued that the court made the same error. CA2 disagreed, finding that it was improper to impute the government’s error to the court. Although the court did not issue a definitive correction, it did nothing to suggest that it agreed with the government.

CA2’s decision can be found here.

Appellate Division, First Department

In People v. Hayes, AD1 reversed and dismissed defendant’s NY County sex-trafficking conviction, finding that it was not supported by legally sufficient evidence. According to AD1, the evidence did not establish that defendant used force or engaged in a scheme, pattern, or plan to compel or induce the alleged victim, who did not testify at trial, to engage in prostitution by any threat of physical harm (Penal Law § 230.34[5][a]). The evidence showed that the alleged victim, her mother, and a third woman, sought to earn more money than they were earning in Florida, that they voluntarily traveled with defendant to New York to earn money as prostitutes, and that defendant left them alone at times in Florida and New York. AD1 found that there was no evidence presented at trial that defendant ever threatened to harm the alleged victim if she failed to begin or continue working as a prostitute.

AD1’s decision can be found here.

Appellate Division, Second Department

In People v. Kluge, AD2 reversed defendant’s Suffolk County rape, criminal sex act and burglary convictions, agreeing with defendant that several jury-related issues warranted reversal.

First, without describing the answers that called the jurors’ ability to be fair into question, AD2 found that the court should have granted for-cause challenges to two prospective jurors.

Second, AD2 found that the court “erred in its management of concerns expressed by sworn jurors regarding their deliberations.” At the commencement of the second day of deliberations, the court met with counsel and deliberating juror C.H., who had left the court a telephone message expressing concerns about deliberations. This conversation took place outside the defendant’s presence. Although the court properly attempted to keep its communication with C.H. ministerial by simply directing her to put her concerns in writing, C.H. refused to accept the court’s directions, expressing concerns about the course of deliberations, including a concern that someone was “stirring the jury” and that other jurors had been “influenced.” The court eventually directed a court officer to return C.H. to the jury room and provide her with writing materials. AD2 found that defendant had a right to be present while these conversations took place.

Third, AD2 found that the court had mishandled a note from the jury, because the record did not reflect that counsel was made aware of the exact contents of the note before the court responded to it.

AD2’s decision can be found here.


In a week where there were no precedential opinions, the most interesting case out of the Circuit was Santos, a case in which the defendant received a 41-month sentence for telling a probation officer as he was leaving the courtroom after sentencing, “When I get out, I’m coming for you.” The 41-month sentence defendant received was much longer than the six-month sentence following which defendant made the threat.

Santos provides a good reminder to warn clients to remain quiet after sentence is imposed. Reading between the lines of its decision, CA2 seemed troubled by the sentence’s length, remanding on procedural-reasonableness grounds.

A relatively quiet week in the NY state courts as well with a few routine decisions from the Court of Appeals, and a handful of reversals in the Appellate Divisions.

Second Circuit

In United States v. Santos, in a summary order, CA2 affirmed defendant’s District of Connecticut conviction for threatening a federal official, but vacated the 41-month sentence finding that the district court unreasonably declined to apply the four-level Guidelines reduction for a threat that involved a single instance evidencing little or no deliberation. See § 2A6.1(b)(6).

In 2014, defendant was convicted in SDNY of unrelated crimes and sentenced to 25 monthsʹ imprisonment and three yearsʹ supervised release. While on supervised release in the District of Connecticut after completing his prison term, defendant tested positive for heroin more than a dozen times and failed to complete several drug programs. In 2016, the district court held a hearing to address defendant’s violations of supervised release. After concluding that defendant violated the conditions of his supervised release, the district court sentenced him to six months of imprisonment, to be followed by two years of supervised release. As defendant was leaving the court room, he turned to his probation officer and made a threatening comment that when he was released, he’d be “coming for” the officer. He was later indicted for and convicted of threatening a federal official, in violation of 18 U.S.C. § 115(a)(1)(B).

At sentencing, the district court declined to apply § 2A6.1(b)(6), which permits a four‐level reduction if the threat ʺinvolved a single instance evidencing little or no deliberation.ʺ

Two inquiries are relevant to the application of this Guideline: (1) whether, and under what circumstances, the threat itself has been repeated and (2) whether there is evidence of planning or some effort to carry out the threat. CA2 found insufficient evidence of deliberation and repetition of the threat. The evidence relied on by the district court demonstrated that defendant was agitated by the results of the violation hearing, but it did not establish that defendant engaged in any deliberation or planning. The fact that defendant was ʺunder controlʺ during parts of the hearing shows that his threat was a spontaneous outburst triggered by his mounting anger. CA2 remitted for a plenary resentencing.

CA2’s decision can be found here.

In United States v. Taylor, in a summary order, CA2 affirmed defendant’s EDNY convictions for: conspiracy to distribute and distribution of cocaine, two counts of drug-related murder, two counts of drug-related murder conspiracy, murder-for-hire conspiracy, use of a facility to commit murder for hire, use and discharge of a firearm during and in relation to drug trafficking crimes and crimes of violence, and firearm-related murder, and the sentence of life plus 50 years imposed by Judge Dora L. Irizarry. In doing so, CA2 rejected defendant’s various evidentiary objections.

CA2 found that the district court did not abuse its discretion when it ruled that recorded statements made by a co-defendant to a confidential informant were admissible as statements against penal interest. According to CA2, the statements in the recording were not testimonial because the declarant was not aware that he was speaking to a confidential informant or that his statements could be used at a trial. See United States v. Saget, 377 F.3d 223, 229 (2d Cir. 2004) (stating that “a declarant’s statements to a confidential informant, whose true status is unknown to the declarant, do not constitute testimony” for purposes of the Confrontation Clause.).

According to CA2, the district court’s interruptions to admonish defense counsel about the form of his questions also did not deprive defendant of his right to a fair trial. The district court’s admonitions, even if “curt and critical,” did not suggest any “endorsement of any witness’s testimony or reveal[ ] any bias against” defendant. United States v. Rosa, 11 F.3d 315, 343 (2d Cir. 1993). Moreover, CA2 noted that defense counsel was permitted to rephrase his questions and that the district court instructed the jury not to draw any inferences from its rulings on objections or its colloquies with counsel.

CA2’s decision can be found here.

In United States v. Sobers, in a summary order, CA2 affirmed defendant’s EDNY conviction for being a felon in possession of a firearm (§ 922(g)(1)). In doing so, CA2 rejected defendant’s challenge of district judge I. Leo Glasser’s denial of his motion to suppress the firearm.

Defendant was stopped by NYPD officers upon entering the subway and arrested for theft of services. The officers then discovered a gun in his backpack. Defendant argued on appeal that the court erroneously denied his suppression motion, because (1) the arresting officers did not have reasonable suspicion to stop him, and (2) the arresting officersʹ warrantless search of his backpack was unconstitutional.

CA2 agreed with the district court that the NYPD officers had reasonable suspicion to believe defendant had committed a crime. They observed defendant look around before swiping a MetroCard to gain entry to the subway station. They could see an amber light illuminate on the turnstile, indicating that defendant used a student MetroCard. They could also see that he looked older than a typical student MetroCard user. Because it is unlawful for a non‐student to use a student MetroCard, the officers witnessed “specific and articulable facts” that led them to the “rational inference,” that “criminal activity was afoot.”

CA2 assumed without deciding that the search of the backpack was unlawful, but found that the gun would have been inevitably discovered when the officers conducted a search incident to defendant’s arrest for theft of services.

CA2’s decision can be found here.

In United States v. Ahmed, in a summary order, CA2 affirmed defendant’s EDNY convictions for health care fraud, making false statements in connection with the delivery of or payment for health care benefits, items, or services, and money laundering. CA2 also affirmed the 156-month prison sentence imposed by Judge Dora L. Irizarry and the orders of restitution and forfeiture in the amount of$7,266,008.95, but vacated the fine of $20,000. CA2 rejected defendant’s challenges to the procedural and substantive reasonableness of the sentence, but found that the fine was based on an inaccurate calculation.

The district court determined that defendant’s convictions carried a total offense level of 29. In criminal history category I, that offense level corresponded to an advisory Guidelines range of 87–108 months’ imprisonment. After the district court evaluated the § 3553(a) sentencing factors, it imposed a sentence of 156 months—48 months higher than the top of the Guidelines range it had calculated. The court’s “Statement of Reasons” identified 87–108 months as the applicable guidelines range, but included a checkmark on the following page indicating that “[t]he sentence is within the guideline range.”

On appeal, defendant argued that this checkmark demonstrated that the district court calculated the guidelines range improperly. He also argued that the district court failed adequately to explain its decision to impose an above-guidelines sentence.

CA2 disagreed. It found that the inconsistent checkmark was an apparent clerical error. The district court adequately explained its above-guidelines sentence based on the § 3553(a) factors. The sentence was not substantively unreasonable because, as the district court reasoned, defendant took advantage of society’s most vulnerable people, had no need to do so other than to satisfy his own greed, his crimes were exceptionally blatant, and he attempted to launder money specifically to frustrate a federal investigation.

CA2 found that the district court erred in its fine calculation. The applicable fine table provided that an offense level of 29 carries a minimum guidelines fine of $15,000 rather than the $20,000 the district court calculated. See § 5E1.2(c) (2014); Because the district court expressed a clear intent to impose a fine at the low end of the Guidelines range, CA2 vacated the fine and directed the district court on remand to recalculate the applicable guidelines fine range, reconsider the amount of the fine, and amend its judgment.

CA2’s decision can be found here.

In United States v. Picone, in a summary order, CA2 remanded defendant’s EDNY child pornography conviction, for which Judge William F. Kuntz II had imposed a 170-month sentence with $10,000 in restitution, $5,100 in special assessments, and a fine of $250,000. According to CA2, the fine was not adequately supported by consideration of the impact it would have on defendant’s financial dependents, a mandatory consideration under § 3572(a)(2). CA2 remanded for a Jacobson hearing on the narrow issue of the burden that the fine will impose on defendant’s wife.

CA2’s decision can be found here.


New York Court of Appeals

In People v. Ramlall, NYCA unanimously affirmed defendant’s traffic infraction for driving while ability impaired, rejecting his argument that his conviction violated his constitutional right to a speedy trial. Balancing the relevant factors, NYCA found that, although it was a close case, the delays did not rise to the level of a constitutional violation. NYCA did not detail the length of the delays or the reasons for them.

It is worth noting that the new version of CPL § 30.30, for the first time, includes traffic infractions within the definition of offenses. See § 30.30(1)(e). Going forward, at least, defendants will not need to resort to constitutional speedy trial protections for traffic infractions.

NYCA’s decision can be found here.

In People v. Francis, NYCA unanimously affirmed the denial of defendant’s CPL 440.20 motion to set aside his sentence of six months’ incarceration for third-degree criminal possession of a weapon, on the ground that it was illegally lenient. NYCA held that, when a defendant moves to vacate a sentence on the ground that it is illegally lenient, denial of such a motion is not reviewable because any purported “error or defect in the criminal court proceedings” has not “adversely affected” the defendant.

CA2’s decision can be found here.

In People v. Wheeler, NYCA unanimously reversed defendant’s obstructing governmental administration conviction, finding that the accusatory instrument was not facially sufficient.

Defendant was charged with OGA for having backed his car away from police officers who were attempting to execute a warrant to search the car. Defendant moved to dismiss the accusatory instrument arguing that it was facially insufficient because it failed to put him on notice of the “official function” with which he was alleged to have interfered (Penal Law § 195.05). He asserted that the accusatory instrument was defective because it lacked any reference to the search warrant and alleged in a conclusory fashion that defendant’s actions were intentionally taken to prevent the police officers from “effecting a proper vehicle stop.”

NYCA agreed. The accusatory instrument lacked factual allegations providing defendant with notice of the official function with which he was charged with interfering—namely, a police stop of defendant in his car in order to execute a search warrant.

NYCA’s decision can be found here.

Appellate Division, First Department

In People v. Rivera, AD1 reversed defendant’s New York County criminal sale of a controlled substance convictions, finding that defendant was denied his right to a public trial when defendant’s family members were excluded from the courtroom during the testimony of two undercover officers, and where there was no testimony that defendant or any member of his family threatened or otherwise posed a threat to the testifying officers and defense counsel had requested that family members be permitted to attend the officers’ trial testimony.

AD1’s decision can be found here.

Appellate Division, Second Department

In People v. Carlos M., AD2 reversed defendant’s second-degree robbery conviction, substituting its discretion for that of the Rockland County Court, and finding that defendant should have been adjudicated a youthful offender even though he had pleaded guilty to an armed felony. AD2 found that there were mitigating circumstances because no physical harm resulted to the complainant. On the issue of discretion, AD2 cited the fact that defendant was only 16 years old, had used a BB gun, and had no prior record.

AD2’s decision can be found here.

In People v. Ramirez, AD2 reversed defendant’s Queens County gang assault convictions, as it had in a co-defendant’s case nearly three years ago, for prosecutorial misconduct during summation. According to AD2, the prosecutor improperly suggested that the jury should disregard the grand jury testimony of one of the People’s main witnesses, and invited the jury to speculate that a missing witness would have given supporting testimony if he had been called to testify. AD2 additionally found that the People’s Molineux evidence relating to resisting arrest 6 months after the incident and violating an order of protection were not relevant to any permissible issue in the case.

AD2’s decision can be found here.

Appellate Division, Fourth Department

In People v. Work, AD4 reversed defendant’s Erie County weapons possession conviction, finding that his guilty plea was not knowing and voluntary because of the mistaken understanding, shared by the court and defense counsel, about the legally permissible sentencing options.

Defense counsel advocated for a sentence of parole supervision under CPL 410.91 if defendant pleaded guilty. The court stated that it could and would consider imposing such a sentence if he pleaded guilty. But defendant was not eligible for a parole-supervision sentence pursuant to CPL 410.91 because the crime to which defendant agreed to plead guilty was not a “specified offense” under the statute. The misunderstanding was never corrected by the court, defense counsel, or the prosecutor. Preservation was not required inasmuch as defendant—due to the inaccurate advice of his counsel and the trial court—did not know during the plea proceedings that a sentence under CPL 410.91 was not permissible.

AD4’s decision can be found here.

In People v. David T., AD4 reversed the order of the Onondaga County Court that had, pursuant to CPL 330.20, committed defendant to the custody of the Commissioner of Mental Health for confinement in a secure facility following the court’s acceptance of defendant’s plea of not responsible by reason of mental disease or defect to arson in the second degree. CPL 330.20 (6) requires that, after an examination is completed and the reports are submitted to the court, the court must, within 10 days, conduct an initial hearing to determine the defendant’s present mental condition. Because no initial hearing was held, reversal was statutorily required even absent an objection.

AD4’s decision can be found here.


This week, in its only precedential opinion, in Nikolla, CA2 found that threatening physical violence in furtherance of an extortion plan satisfied the crime-of-violence elements clause of § 924(c)(3).

In two contrasting summary orders, both following revocations of supervised release by SDNY Judge Richard Sullivan, CA2 found that a lifetime term of supervised release was appropriate in Fnu Lnu, but not adequately supported in Nunez.

A quiet week in the New York state courts. People v. Anonymous, the only signed opinion from the Court of Appeals, is interesting for the outrageous position taken by Chief Judge DiFiore, that a court can consider in a subsequent proceeding evidence from a trial leading to an acquittal and that is sealed by statute.

Second Circuit

In United States v. Nikolla, CA2 affirmed defendant’s EDNY conviction, before Judge Eric N. Vitaliano, following his guilty plea to two counts of Hobbs Act extortion conspiracy in violation of 18 U.S.C. § 1951(a), one count of threatening physical violence in furtherance of an extortion plan in violation 18 USC § 1951(a), and one count of brandishing a firearm during and in relation to a crime of violence in violation of § 924(c)(1)(A)(ii). In doing so, CA2 found that threatening physical violence in furtherance of an extortion plan (18 USC § 1951(a)) qualifies categorically as a “crime of violence” under the Elements Clause of §924(c)(3).

Section 924(c) requires a mandatory consecutive sentence of seven years’ imprisonment for the use or carrying of a firearm during and in relation to a “crime of violence” if the firearm is brandished. Section 924(c) defines “crime of violence” as “an offense that is a felony and—(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” § 924(c)(3)(A) (“elements clause”).

Under the categorical approach, to disqualify a particular offense from § 924(c)’s definition of “crime[s] of violence,” a defendant must show “a realistic probability, not a theoretical possibility, that the statute at issue could be applied to conduct that does not constitute a crime of violence.” Section 1951(a)—the statute defendant was alleged to have violated—defines several separate offenses, one of which applies to a defendant who “commits or threatens physical violence to any person or property in furtherance of a plan or purpose to [commit Hobbs Act robbery or extortion].” CA2 concluded that the elements of that offense mirror almost exactly the definition of a “crime of violence” in the elements clause of § 924(c). These almost exact definitions meant that threatening physical violence in furtherance of an extortion plan is a crime of violence.

CA2’s decision can be found here.

In United States v. Nunez, in a summary order, CA2 affirmed in part, and vacated in part, the sentence imposed by SDNY Judge Richard J. Sullivan following defendant’s violation of supervised release. Judge Sullivan sentenced defendant to 24 months’ imprisonment to be followed by a further life term of supervised release. In vacating in part, CA2 found that Judge Sullivan had not adequately explained why defendant deserved a life term of supervised release.

If a district court revokes a defendant’s term of supervised release, it may impose a new term of supervised release to follow the defendant’s release from prison, provided that term does not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release. See 18 U.S.C. § 3583(h). Here, the maximum term of supervised release following defendant’s original drug trafficking conviction was life.

CA2 had previously held, based on 18 USC §§ 3553(c) and 3553(a)(6), that there must be ʺa significant justificationʺ to impose a life term of supervised release, because imposing a life term is ʺan extreme and unusual remedyʺ that is, ʺto some degree, at odds with the rehabilitative purpose of supervised release, as it presumes that the need for supervision will never end and that the defendant is essentially incorrigible.ʺ United States v. Brooks, 889 F.3d 95, 99, 102-02 (2d Cir. 2018).

CA2 found that the court here did not explain why defendant was so different from other recidivist defendants in his position that he needed a life term of supervised release. CA2 declined to decide whether a life term of supervised release was substantively unreasonable, but noted that it was unclear from the record why such a term was imposed in this instance when a shorter term might have been sufficient to serve the ends of justice.

CA2’s decision can be found here.

Meanwhile, in United States v. Fnu Lnu, in a summary order, CA2 affirmed the 36-month sentence and life term of supervised release imposed by Judge Richard J. Sullivan following defendant’s violation of supervised release, rejecting defendant’s procedural reasonableness challenges.

CA2 dismissed defendant’s claim that the court ignored defendant’s positive contributions made while on supervised release, pointing out that the sentencing court explicitly took note of those contributions, but accorded them little weight as mitigating factors because they were made possible only by defendant’s ongoing criminal conduct. CA2 likewise rejected defendant’s contention that the district court mistakenly emphasized punishment rather than deterrence, noting that the court’s comments reflected an almost singular focus on protecting the public generally, by deterring others from committing similar offenses.

Although CA2 did not address the lifetime supervision the district court imposed, it pointed to the reasonableness of the sentence generally and pointed to the court’s discussion in detail at numerous hearings of defendant’s background and characteristics, the nature of his violations of supervised release, and the court’s concern about preventing future misconduct by defendant and others. CA2 found these discussions more than sufficient to justify the court’s conclusion that defendant’s case was “unique” and that his conduct was different from “virtually everybody who is confronted with an arrest in the criminal justice system,” thus warranting the sentence imposed.

CA2’s decision can be found here.

In United States v. Jacques, in a summary order, CA2 affirmed EDNY Judge Nina Gershon’s denial of defendant’s pro se motion to reduce his sentence. According to CA2, the defendant had already received a reduction pursuant to Guidelines Amendment 782, and was not eligible for a second reduction because the applicable Guidelines range had not been subsequently lowered by any amendment.

CA2’s decision can be found here.

In United States v. Brega, in a summary order, CA2 affirmed defendant’s SDNY convictions for mail fraud and bribery and theft concerning a program receiving federal funds (18 U.S.C. 666(a)(1)(A)), and the 50-month prison sentence imposed by Judge Kenneth M. Karas. CA2 rejected defendant’s challenges to (1) the sufficiency of the evidence relating to his bribery conviction, (2) alleged misconduct by the prosecutor during summation, and (3) the procedural reasonableness of his sentence.

Defendant owned and controlled Brega DOT Maintenance Corp., a vehicle maintenance and repair shop that serviced customers in Rockland County. Defendant contracted with Rockland BOCES to maintain and repair school buses. According to the indictment, from 2012 through 2014, defendant participated in a bribery and fraud scheme with the transportation supervisor (Popkave) at Rockland BOCES. As part of this scheme, defendant allegedly falsified invoices submitted to Rockland BOCES for preventative maintenance on buses that were never actually brought to Brega DOT.

Defendant argued that the evidence was insufficient to show that he agreed to provide free vehicle repairs in exchange for Popkave’s assistance. CA2 disagreed, citing evidence that included: Popkave’s testimony that defendant consistently reminded him of his outstanding bill when they discussed preventative maintenance for Rockland BOCES buses, Popkave’s understanding that, if he didn’t put pressure on defendant, defendant wouldn’t put pressure on him, and defendant’s forgiveness of Popkave’s $47,318.81 of personal debt after Popkave helped Brega DOT process several preventative maintenance invoices.

CA2 similarly rejected defendant’s challenges to the prosecutor’s summation arguments, finding, when viewed in the context of the trial as a whole, that the statements were permissible arguments about the merits of the defense theory or appropriate responses to defense counsel’s own summation comments, which impugned the integrity of the government’s case.

On the issue of the procedural reasonableness of defendant’s sentence, CA2 found that the district court properly applied a two-level obstruction of justice enhancement after finding, by a preponderance of the evidence, that defendant took steps to conceal Popkave’s outstanding debt to Brega DOT through a false scheme to sell automotive tools.

CA2’s decision can be found here.

New York Court of Appeals

In  People v. Anonymous, in a 4-3 decision, with the majority opinion written by Judge Rivera, and the dissent by Chief Judge DiFiore, NYCA vacated the New York County sentence imposed on defendant. NYCA held that, where a violation of the sealing mandate of CPL 160.50 for acquitted cases impacts the ultimate sentence, the error warrants correction. Here, where the court imposed on defendant a higher sentence than promised at his plea based on its finding that the unsealed trial record—which the court mistakenly believed it could consider—established defendant’s violation of a pre-sentence condition of his plea, a resentencing without reference to the sealed materials was required.

Chief Judge DiFiore would have held that the sentencing court properly looked to the statutorily sealed materials when imposing a longer-than-promised sentence.

NYCA’s decision can be found here.

In People v. Diaz, in a memorandum decision, with a dissent from Judge Rivera, NYCA affirmed the New York County Supreme Court’s decision adjudicating defendant a SORA level-two offender, due in part to the assessment of ten points for the use of violence.

NYCA rejected defendant’s challenge to the assessment of points for use of violence, finding it adequately supported by information in the Presentence Investigation report which stated that, on one or more occasions, defendant used physical force to coerce the victim into cooperation. Further, NYCA cited to the fact that, at the SORA hearing, defendant did not challenge the accuracy of the statement concerning his use of violence by offering contradictory documentary evidence or testimony. Because the statement’s accuracy was never disputed, the court did not err in rejecting defendant’s claim that the evidence must be discounted because the acts of force were not described in greater detail.

NYCA’s decision can be found here.

Appellate Division, Second Department

In People v. Clark, AD2 held defendant’s Rockland County criminal mischief conviction in abeyance, and remitted for a hearing on defendant’s motion to dismiss the indictment on the ground that he was deprived of his right to due process by the People’s unjustified delay in prosecution.

During a domestic incident, the defendant damaged his wife’s computer. After a jury trial, the defendant was convicted of criminal mischief in the third degree and sentenced to an indeterminate term of imprisonment of 1⅓ to 4 years.

AD2 found that the County Court failed to appropriately balance the requisite factors and improperly denied, without a hearing, the defendant’s motion to dismiss the indictment. Under the circumstances presented (which it did not describe), which included a delay of approximately 22 months from the time of the incident to the filing of the indictment and arraignment, the People’s failure on the record to establish a good faith reason for the delay, and the defendant’s claim of prejudice, AD2 found that the County Court should have conducted a hearing before determining that the delay in prosecution was not in violation of the defendant’s due process rights.

AD2’s decision can be found here.

In People v. Juan R., AD2 reversed the Rockland County Court order that had committed defendant to a secure facility for six months pursuant to CPL 330.20(6) upon a finding that he had a dangerous mental disorder.

After the defendant was charged with burglary in the third degree and criminal mischief in the third degree, the County Court accepted a plea of not responsible by reason of mental disease or defect. Even though the commitment order expired, AD2 reversed because there was no legitimate strategy for counsel to concede that his client suffered from a dangerous mental disorder, implicitly consenting to his client’s confinement in a secure facility. Nor did counsel’s concession relieve the County Court of the obligation to conduct a mandatory preliminary statutory hearing.

AD2’s decision can be found here.

In People v. Rivera, AD2 affirmed defendant’s Westchester County convictions for burglary, criminal possession of a weapon, and criminal possession of stolen property, but reversed his conviction for grand larceny in the third degree as against the weight of the evidence, because value of the property stolen had not been adequately proven.

Grand larceny third degree requires that the value of property taken exceed $3,000. According to AD2, while the People proved that the value of two items taken was between $500 and $1,000, the only evidence of the value of the remaining stolen items was the complainant’s testimony regarding the purchase price of some of those items, which did not include when he purchased those items, their market value, or the cost to replace them. AD2 found that, although a victim is competent to supply evidence of original cost, evidence of the original purchase price, without more, will not satisfy the People’s burden. On this record, AD2 could not conclude that the fact-finder could “reasonably infer, rather than merely speculate” that the value of all of the stolen goods exceeded the statutory threshold of $3,000.

AD2’s decision can be found here.


The Supreme Court returned to action this week, with three decisions in criminal cases, although none of them were particularly significant. In Shuler, the Court rejected an argument for limiting the ACCA definition of serious drug offense; in McKinney, SCOTUS ruled on an obscure procedural question about whether an appellate reweighing of sentencing factors by a state supreme court is a collateral or direct-review proceeding for retroactivity purposes; and in Holguin-Hernandez SCOTUS rejected a ruling by the Fifth Circuit that would have prohibited review of the reasonableness of a defendant’s sentence unless the defendant specifically objected to the sentence after it was imposed as substantively unreasonable.

The Circuit was relatively quiet this week, with only a single precedential decision, in Ojeda, dealing with the ACCA definition of serious drug offense.

The state courts, too, were likewise quiet, with only a single reversal each, in the First and Second Departments.

United States Supreme Court

In Shular v. United States, in a decision written by Judge Ginsburg, SCOTUS unanimously held that the ACCA’s definition of “serious drug offense” requires only that a state offense involve the conduct specified in the statute, not that the state offense match certain generic offenses.

The ACCA mandates a 15-year minimum sentence for a defendant convicted of being a felon in possession of a firearm who has at least three convictions for “serious drug offense[s].” § 924(e)(1). A state offense is a “serious drug offense” only if it “involv[es] manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.” §924(e)(2)(A)(ii). To determine whether an offender’s prior convictions qualify as predicated for an ACCA enhancement, courts use a “categorical approach,” looking “only to the statutory definitions of the prior offenses.”

Under some statutes, a court using the categorical approach must come up with a “generic” version of a crime—that is, the elements of the offense as commonly understood. The court then determines whether the elements of the offense of conviction match those of the generic crime. Other statutes, which ask the court to determine whether the conviction meets some other criterion, require no such generic-offense analysis.

Defendant here pleaded guilty to being a felon in possession of a firearm and received a 15-year sentence, the mandatory minimum under the ACCA. In imposing this sentence, the district court held that defendant’s six prior cocaine-related convictions under Florida law qualified as “serious drug offense[s]” triggering the ACCA enhancement.

SCOTUS rejected defendant’s contention that §924(e)(2)(A)(ii) identifies generic offenses whose elements a court must first expound, then compare against the state crime’s elements.

SCOTUS’s decision can be found here.

In McKinney v. Arizona, in a 5-4 decision, with the majority opinion written by Judge Kavanaugh, SCOTUS held that in a death penalty case that is reversed for Eddings error—because the sentencing court failed to properly consider relevant mitigating evidence—a defendant is not necessarily entitled to a plenary resentencing, and an appellate court is permitted to reweigh the mitigating circumstances and uphold the death penalty.

In reaching that decision, the majority held that the Court’s 2002 decision in Ring v. Arizona, 536 U.S. 584 (2002), which held that Arizona’s capital sentencing regime was unconstitutional because it allowed a judge, rather than a jury, to weigh aggravating and mitigating circumstances, did not apply to defendant’s collateral attack here because his conviction was final in 1996 before Ring was decided.

Writing for the dissent, Justice Ginsburg would have held that Ring applied to defendant’s case because it was not on collateral review but direct review, because the Arizona Supreme Court’s proceeding was “direct in character.”

SCOTUS’s decision can be found here.

In Holguin-Hernandez v. United States, SCOTUS  unanimously reversed the decision of the Fifth Circuit, which had held that a defendant who does not specifically object to the reasonableness of the sentence in the district court forfeits the argument on appeal that the sentence imposed is greater than necessary to accomplish the goals of sentencing.

Petitioner Holguin-Hernandez was convicted on drug charges and sentenced to 60 months in prison and five years of supervised release while he was still serving a term of supervised release for an earlier conviction. The Government asked the District Court to impose an additional consecutive prison term of 12 to 18 months for violating the conditions of the earlier term of supervision. Petitioner countered that 18 U. S. C. §3553’s sentencing factors either did not support imposing any additional time or supported a sentence of less than 12 months. The court nonetheless imposed a consecutive 12-month term. On appeal, Petitioner argued that this sentence was greater than necessary to accomplish the goals of sentencing. The Fifth Circuit held, however, that Petitioner had forfeited this argument by not making it in the District Court.

According to SCOTUS, a party who informs the court of the “action” he “wishes the court to take,” ordinarily brings to the court’s attention his objection to a contrary decision. Here, the defendant advocated for a sentence shorter than the one actually imposed.  Nothing more is needed to preserve a claim that a longer sentence is unreasonable. Defendants need not also refer to the “reasonableness” of a sentence.

SCOTUS’s decision can be found here.

Second Circuit

In United States v. Ojeda, CA2 affirmed defendant’s SDNY convictions for being a felon in possession of a firearm and obstruction of justice and the 15-year sentence imposed by Judge Andrew J. Carter on the felon-in-possession count. In doing so, CA2 rejected defendant’s contention that his prior NY state convictions for attempted sale and possession with intent to sell controlled substances were not ACCA predicates.

The Armed Career Criminal Act (ACCA) mandates a 15-year minimum sentence for offenders who have three or more convictions for a “violent felony” and/or “serious drug offense.” § 924(e)(1). The district court applied the ACCA in defendant’s case based on three prior NY State convictions: (1) a 2007 conviction for first-degree robbery (PL § 160.15); (2) a 1998 conviction for attempted sale of a controlled substance in the third degree (PL § 220.39); and (3) a 1998 conviction for attempted possession of a controlled substance with intent to sell in the third degree (PL § 220.16(1)).

On appeal, defendant argued that none of these convictions qualified as an ACCA predicate. He argued that Samuel Johnson v. United States, 135 S. Ct. 2551 (2015), required that ACCA’s definition of a “serious drug offense,” was too vague to be applied constitutionally to his NY attempted drug crimes. He also argued, for the first time on appeal, that, according to Curtis Johnson v. United States, 559 U.S. 133 (2010), New York first-degree robbery was not a categorical “violent felony” under 18 U.S.C. § 924(e)(2)(B)(i). CA2 disagreed.

On the issue of whether first-degree robbery was a crime of violence, CA2 deferred to its recent decision in United States v. Thrower, 914 F.3d 770. Thrower ruled that NY robbery, even in the third degree—which proscribes “forcibly steal[ing] property” without any aggravating circumstances—was categorically a violent felony under the ACCA. By extension, so too was robbery in the first degree, even without regard to the particular aggravating circumstances proved.

On the issue of whether the attempted drug sale and possession counts were “serious drug offenses,” the ACCA defines “serious drug offense” to include those state law crimes “involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a [federally recognized] controlled substance” punishable by a maximum prison term of ten years or more. 18 U.S.C. § 924(e)(2)(A)(ii) (emphasis added). Defendant argued that the italicized word “involving” was too vague to alert average persons to what conduct might constitute a serious drug offense beyond the actual manufacture, distribution, or possession (with intent to manufacture or distribute) of controlled substances. Specifically, he argued that the word involved was too vague to encompass the New York crimes of attempted drug sale and possession with intent to sell for which he was convicted in 1998.

CA2 again deferred to its own prior decisions. In United States v. King, 325 F.3d 110, 115 (2d Cir. 2003), CA2 had expressly held that New York attempted possession of a controlled substance with intent to sell was a serious drug offense under the ACCA. Defendant argued that the Supreme Court’s decision in Samuel Johnson v. United States, 135 S. Ct. 2551, required reevaluating King. In Samuel Johnson, the Supreme Court held unconstitutionally vague another definitional provision of ACCA, specifically, § 924(e)(2)(B)(ii)’s residual clause definition of violent felony. Defendant argued that, just as the phrase “conduct that presents a serious potential risk of physical injury” in § 924(e)(2)(B)(ii) “fails to give ordinary people fair notice of the conduct it punishes,” id. at 2556, the phrase “involving manufacturing, distributing, or possessing” in § 924(e)(2)(A)(ii) suffered from the same defect.

CA2 found that its post-Samuel Johnson decision in United States v. Wallace, 937 F.3d 130, defeated that argument. There, CA2 cited approvingly to King’s recognition that the word “involving” has “expansive connotations,” which signal § 924(e)(2)(A)(ii)’s reach “beyond the precise offenses of distributing, manufacturing, or possessing” drugs. Id. at 142. CA2 concluded that just as an attempt to possess a controlled substance “involves possessing a controlled substance, so too does an attempt to sell—or to offer or agree to sell—a controlled substance involve distributing a controlled substance.” Id. at 142–43

CA2’s decision can be found here.

In United States v. Knowles, in a summary order, CA2 affirmed defendant’s conviction for unlawful possession of a firearm by a felon and the 60-month prison sentence imposed by EDNY Judge William F. Kuntz, thereby rejecting defendant’s challenges to the district court’s refusal to make two discretionary downward departures.

Defendant’s advisory Guidelines range was 57 to 71 months based on a Total Offense Level of 21 and Criminal History Category of IV. He first argued that the district court erred in declining to depart downward pursuant to § 5H1.4 based on evidence that defendant suffered from pain arising from a jaw injury and related surgery in 2013. Section 5H1.4 provides that “[a]n extraordinary physical impairment may be a reason to depart downward….” CA2 found that the court’s sentencing memorandum reflected that it understood the relevant facts and determined that they did not warrant a downward departure.

Defendant’s second challenge was to the district court’s decision not to depart downward pursuant to § 4A1.3(b)(1), which provides that, “[i]f reliable information indicates that the defendant’s criminal history category substantially over-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes, a downward departure may be warranted.” Defendant contended that his Criminal History Category of IV overstated the seriousness of his criminal record. CA2 found that there was no evidence that the District Court misperceived its authority under section 4A1.3(b)(1).

CA2’s decision can be found here.

In United States v. Rodriguez, in a summary order, CA2 affirmed defendant’s conviction for possession of a firearm by a felon and the 37-month sentence imposed by SDNY Judge Kenneth M. Karas. CA2 rejected defendant’s challenge to the court’s treatment of his 2008 NY second-degree assault conviction as a crime of violence in enhancing his sentence. CA2 cited to its recent decision in United States v. Tabb, 2020 WL 573379, at *3 (2d Cir. Feb.6, 2020), in which it had determined that assault in the second degree under N.Y. P.L. § 120.05(2) is categorically a crime of violence under the Force Clause of U.S.S.G. § 4B1.2.

CA2, nonetheless, remanded the case for the district court to correct an error in its written judgment whereby it promised, but failed, to suspend a mandatory drug-testing condition during defendant’s supervised release.

CA2’s decision can be found here.

Appellate Division, First Department

In People v. Manning, AD1 reversed defendant’s NY County third-degree robbery convictions, finding that supreme court unjustifiably discharged for cause a selected but unsworn juror, and that the record was insufficient to assess whether the court had properly denied defendant’s suppression motion.

Both defendant and the People initially declined to challenge a juror. Later, the prosecutor challenged the juror for cause, over defense objection, after the court raised a concern about an important out-of-town meeting that the prospective juror was scheduled to attend on a day before the anticipated conclusion of the trial. Subsequent questioning demonstrated that rescheduling the meeting would be inconvenient for the juror, but it did not establish that the juror, who never directly asked to be excused for hardship or otherwise, had a state of mind that was likely to preclude him from rendering an impartial verdict. Because the juror’s responses did not establish a sufficient basis to sustain a challenge for cause, which was the only issue presented to, and ruled upon, by the court, reversal was required.

AD1 also ruled that the new trial should be preceded by further fact finding on defendant’s suppression motion because the record was not sufficient on the significant issue of whether the plainclothes police officers identified themselves to defendant as law enforcement before defendant fled and the officers chased him.

AD1’s decision can be found here.

Appellate Division, Second Department

In People v. Thelismond, AD2 reversed defendant’s Kings County second-degree murder conviction, finding that the court erroneously admitted a recording of an anonymous call made to 911 under the “excited utterance” and “present sense impression” exceptions to the hearsay rule.

AD2 found that the People did not present sufficient facts from which it could be inferred that the anonymous caller personally observed the incident. The anonymous caller merely stated to the 911 operator that “[s]omebody just got shot on East 19th and Albemarle” and that it “was a guy with crutches. He started to shoot.” Nothing in these brief, conclusory statements, which were made at least five minutes after the shooting occurred, suggested that the caller was reporting something that he saw, as opposed to something he was told. Although there was testimony that the call was made from a payphone located in the vicinity of the shooting, the People did not demonstrate that the payphone was situated outdoors or in a place where the actual site of the shooting would be visible.

AD2’s decision can be found here.