Decisions of the Week Ended – April 3, 2020

by | Apr 3, 2020 | Ed Sapone’s Decisions of the Week

The Second Circuit has extended filings and deadlines for three weeks, has conducted arguments by teleconference, and has remained busy issuing decisions. Two crime-of-violence-related decisions were particularly interesting:

  • Nunez, which held that defendants cannot raise a residual-clause challenge to a sentence based on the pre-BookerCareer Offender Guideline in a § 2255 petition; and
  • Scott, which held that NY’s first-degree manslaughter could not serve as a predicate felony for ACCA sentencing enhancements.

The New York appellate courts, working under similar conditions, continued to release written decisions as well. NYCA’s decision in Williams presents serious consequences to NYC prosecutions over the past decade, calling into question the reliability of the Office of the Chief Medical Examiner’s Low-Copy Number DNA tests, and its Forensic Statistical Tool.

Second Circuit

In Nunez v. United States, CA2 affirmed the order of SDNY Judge Lewis A. Kaplan that had denied defendant’s § 2255 motion as untimely. CA2 found that the Supreme Court’s decision in Johnson v. United States, 135 S.Ct. 2551 (2015), did not recognize a retroactive right not to be sentenced based upon the residual clause in the Career Offender guideline of the pre-Booker Guidelines.

Defendant is serving a 360-month sentence for substantive and conspiratorial Hobbs Act robbery, imposed in 2000, which was a significant departure from the 151-to-188-month Guidelines range. The range was dictated by the Career Offender guideline, USSG § 4B1.1, which the court applied after finding that defendant’s two prior convictions were for crimes of violence as defined in the Guidelines’ residual clause, § 4B1.2.

In his § 2255 motion, defendant argued that this residual clause is unconstitutionally vague, relying on Johnson, which struck down an identically worded provision in the Armed Career Criminal Act as unconstitutionally vague.

For CA2, the issue came down to whether the right defendant asserted was recognized in Johnson, making defendant’s motion timely under 28 U.S.C. § 2255(f)(3), or whether the right he asserted had yet to be recognized, rendering his motion untimely. Defendant argued that his § 2255 motion asserted the same due process right recognized in Johnson: like the ACCA’s residual clause, the residual clause of the mandatory Career Offender guideline “fixed” his sentencing range and was subject to the same concerns articulated in Johnson.

According to defendant:

–          the ACCA and residual clause of the Career Offender guideline are identically worded and interpreted;

–           the holding in Johnson applied equally to the residual clause in the guideline (§4B1.2); and

–           the Johnson holding, therefore, recognized the right he asserted.

CA2 disagreed. Although the clauses are identically worded, Johnson addressed only whether the ACCA residual clause was vague, and found only that specific clause vague. Johnson did not address whether the residual clause of the mandatory Career Offender guideline is vague. CA2 cited to the fact that the Third, Fourth, Fifth, Sixth, Ninth, & Tenth Circuits had reached the same result.

In a concurring opinion, Judge Rosemary S. Pooler agreed with the conclusion, but commented that it was, nonetheless, unjust. Because § 2255 petitioners are the only class of defendants who may raise the question of whether the residual clause in the pre-Booker Career Offender guideline is unconstitutionally vague, and “the decision may deny more than 1,000 of them a chance to challenge the constitutionality of their sentences,” the decision was unjust.

In a shocking concurring opinion, Judge Reena Raggi found nothing unjust about the majority opinion, and added that the sentence was not anchored to the advisory Guidelines range, but rather was a result of defendant’s “heinous conduct.”

CA2’s decision can be found here.

In United States v. Scott, in an opinion written by Judge Pooler, CA2 affirmed the order of SDNY Judge Laura T. Swain. Judge Swain had vacated defendant’s sentence and resentenced him to time served because NY’s crime of first-degree manslaughter can be committed by omission, and, therefore could not serve as a predicate felony for ACCA sentencing enhancements.

Defendant pleaded guilty to Hobbs Act robbery; brandishing a weapon during and in furtherance of the Hobbs Act robbery (18 U.S.C. §924(c); and being a felon in possession of a firearm (18 U.S.C. §922(g)).

In 2007, Judge Swain sentenced him to an aggregate 264-month prison term, including a mandatory 180-month term for being a felon in possession under the ACCA and a consecutive 84-month term for the §924(c) brandish. Defendant’s felon in possession sentence was enhanced under the ACCA based on a 1983 conviction in New York for robbery in the first degree and two 1988 convictions in New York for manslaughter in the first degree.

In 2016, defendant filed a habeas petition arguing that his manslaughter convictions were not violent felonies and he was therefore ineligible for an
ACCA sentence. The district court granted defendant’s petition and vacated his sentence. At resentencing, the district court recalculated defendant’s Guidelines range at 121-130 months. At the time of the hearing, defendant had already served 134 months, so the court resentenced him to time-served.

On appeal by the government, CA2 agreed with the district court that NY’s crime of first-degree manslaughter is not a crime of violence under the ACCA’s force clause. The NY penal law lists three criminal acts for which a person may be found guilty of first-degree manslaughter. Where a statute, like New York’s first-degree manslaughter statute, “criminalize[s] multiple acts in the alternative,” the statute is “divisible” and the “modified categorical approach” must be used to determine whether a conviction can serve as a predicate offense for a federal sentencing enhancement. Under that approach, the court first looks to a limited class of documents to determine of which act the defendant was convicted. The court then looks only to the statutory definitions—i.e., the elements—of that portion of the statute, and not to the particular underlying facts, to determine whether those elements can be satisfied by conduct that might reach beyond the parameters of the ACCA. The court must then determine whether “the state statute sweeps more broadly” than the ACCA, in which case a conviction under the state statute cannot serve as an ACCA predicate. Stuckey v. United States, 878 F.3d 62, 67 (2d Cir. 2017). A statute that penalizes activity that does not require the use of force “cannot count as a predicate ‘violent felony’ [under the force clause] for the ACCA’s fifteen-year mandatory minimum.” Id.

CA2 agreed with the District Court that the minimum criminal conduct required for a defendant to be held liable under NY Penal Law § 125.20(1) is a failure to act in the face of a duty to do so, with the intent to cause serious physical injury, which failure causes death.

CA2 found that a crime committed by omission that has as an element the use, attempted use, or threatened use of physical force against another person cannot be a crime of violence, because it does not require the use of physical force.

CA2 also found that NY’s crime of first-degree manslaughter is not a crime of violence under the Career Offender Guideline. For the same reasons that first degree manslaughter did not constitute a predicate offence under the ACCA’s force clause, CA2 found it could not constitute one under the Career Offender Guideline. CA2 also found that first degree manslaughter did not match any of the generic offenses in the enumerated offenses clause.

In a concurring opinion, Judge Pierre N. Leval, would have additionally found that, relying on the rule of lenity by reason of lack of clarity, the ACCA’s requirement of the use of physical force cannot be satisfied where no action is taken.

In a dissenting opinion, Judge Reena Raggi would have found that first-degree manslaughter is a crime of violence. She would have held that, because “the knowing or intentional causation of bodily injury necessarily involves the use of physical force,” manslaughter necessarily involves the use of force, even if it is theoretically possible to commit the crime without a physical act.

CA2’s decision can be found here.

In United States v. Silver, CA2 denied former NY Assembly Speaker Sheldon Silver’s motion for a stay pending the determination of his certiorari petition to SCOTUS, finding no substantial questions raising either a reasonable probability that four justices would vote to grant cert, or a fair prospect that five justices would vote to reverse.

Defendant raised three arguments in his cert petition: (1) that honest services fraud bribery and Hobbs Act extortion under color of right require a “meeting of the minds” agreement; (2) that SCOTUS has questioned the continuing validity of Evans v. United States, 504 U.S. 255, 268 (1992), and that Evans should be overruled; and (3) that CA2’s harmless-error analysis was improper because the Government failed to argue that, if there were an error in the jury instructions, that error was harmless, and because defendant had no opportunity to address the harmless error question. Defendant also argued that there was good cause to stay issuance of the judgment mandate because, if he is ultimately successful, he would have needlessly served time in prison.

CA2 summarily rejected each of defendants’ arguments. CA2 rejected the first argument, at length, in its written opinion. Second, defendant’s Evans argument did not meet the stringent and extraordinary standard required for granting a stay pending writ of certiorari. Third, defendant’s manufactured circuit split on the harmless error issue lacked any precedential support.

CA2’s decision can be found here.

In United States v. Mack, CA2 affirmed defendant’s District of Connecticut convictions for conspiracy to commit witness tampering by first degree murder and felon in possession of a firearm. In doing so, CA2 rejected defendant’s claims that the district court, among other things: (i) failed to instruct the jury on an essential element of his firearms offenses; (ii) erred in admitting hearsay declarations under Federal Rule of Evidence 804(b)(3);[1] and (iii) was not required to impose life sentences for defendant’s conspiracy convictions.

By way of background, the defendant was charged with having murdered Francis, a potential witness, to avoid being arrested. Although defendant was indicted on September 15, 2010, along with 32 others, law enforcement could not locate him and turned to Wynter, another defendant named in the indictment, for assistance. Wynter hoped that by helping the government locate defendant, she might avoid a 10-year mandatory minimum sentence. Wynter was dating Francis, defendant’s close friend. Wynter and Francis, assuming that defendant understood that his arrest was inevitable, hoped that defendant would be amenable to the following proposal: in exchange for cash, defendant would tell Francis and Wynter where he would be at a specific time, so that Wynter could tell law enforcement where defendant could be found. Francis twice proposed this arrangement to defendant, but defendant neither accepted nor rejected it. Defendant never gave Francis or Wynter the requested information.

On December 21, 2010, Miller, one of defendant’s associates, was riding in a car with Francis. Miller told Francis to pull over so Miller could urinate. Moments later, a masked gunman fired multiple shots, from a Ruger 9mm firearm, into the car. When Miller returned to the car, he found Francis shot but alive and on the phone with a 911 dispatcher. Miller drove Francis to a hospital. Francis later died from his injuries. Defendant and Miller were indicted for conspiring to commit witness tampering by murdering Francis. In advance of Miller’s scheduled trial on that indictment, the government disclosed its witness list, which included Jernigan, another of defendant’s close friends.


In a superseding indictment, the government offered evidence that, while incarcerated in Rhode Island, defendant conspired to kill Jernigan to prevent him from testifying.

Ultimately, the jury convicted defendant on two charges of conspiracy to commit witness tampering by first-degree murder and on two firearms charges. The district court then sentenced him to life imprisonment for each conspiracy and the statutory maximum penalty of ten years’ imprisonment for each firearms conviction, all sentences to run concurrently.

CA2 focused on a number of issues, beginning with the jury instructions. The court instructed the jury that, to satisfy the mens rea element for defendant’s firearms charges under 18 U.S.C. §§ 922(g)(1) and 924(a)(2) the government had to prove only “that the defendant knowingly possessed the firearm.” It did not instruct the jury that the government had to show that defendant knew he was a member of a class of persons forbidden to possess firearms by virtue of his earlier felony conviction. Relying on Rehaif v. United States, a case decided by SCOTUS last term, defendant challenged for the first time on appeal the adequacy of the jury instructions for his firearms conviction.

In Rehaif, SCOTUS addressed whether a noncitizen had to know his immigration status to be convicted under 18 U.S.C. § 922(g)(5), which prohibits “an alien . . . illegally or unlawfully in the United States” from possessing a firearm. It held that to obtain any conviction under § 922(g), the government must prove that the defendant “knew he belonged to the relevant category of persons barred from possessing a firearm.” The Court held that the jury instructions, which did not include that knowledge element, were erroneous. The government conceded that, based on Rehaif, the jury instructions were clearly erroneous because they omitted the obligation to prove defendant’s knowledge of his status as a former felon.

CA2, nonetheless, found that, because defendant’s conviction would not seriously affect the fairness, integrity or public reputation of the judicial proceedings, defendant could not show plain error.

CA2 also found that  the district court did not err when it permitted the introduction of Miller’s prior statements under the statement against penal interest exception to the hearsay rule. Because Miller did not testify at trial, the government proffered testimony from another witness as to statements Miller made to the witness about Francis’s murder. Defendant objected to this testimony, which covered Miller’s statements that Miller had lured Francis to the spot where he was shot, that Miller had been present when the shooting occurred, and that defendant was the shooter.

CA2 agreed with the district court that Miller’s out-of-court statements were admissible for their truth under Rule 804(b)(3)’s hearsay exception for statements against penal interest. Miller was an unavailable witness because he would have invoked his Fifth Amendment privilege against compelled self-incrimination.

CA2 found that the district court did not err when it concluded that the government had not caused Miller’s unavailability, even though his plea agreement included an unusual provision specifying that the agreed-upon sentencing range would not be binding if Miller were to testify “about the subject matter which forms the basis of the superseding indictment in this case, and provide testimony inconsistent with or in addition to the facts proffered and agreed to by the defendant as part of the plea colloquy.” Miller’s statements were against his penal interest and were corroborated.

CA2 also rejected defendant’s challenges to his life sentence. Defendant was convicted of two counts of conspiracy to commit witness tampering by first-degree murder, in violation of 18 U.S.C. § 1512(k). Section 1512(k) provides that those convicted of conspiracy to commit witness tampering “shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy.” The district court imposed a life sentence for each conspiracy conviction after concluding that the statutorily prescribed penalty for either conspiracy to commit or committing witness tampering by first-degree murder is death or life imprisonment. CA2 rejected defendant’s argument, among others, that life sentences are not available for defendants who conspire to commit, but are ultimately not responsible for, first-degree murder. Because § 1512(k) adopts the penalty for “the offense the commission of which was the object of the conspiracy,” and because the penalty for committing witness tampering by first-degree murder is death or life imprisonment, the district court was required to sentence defendant to the statutory minimum of life imprisonment.

CA2’s precedential decision can be found here, and its summary order, here.

In United States v. Vargas, in a summary order, CA2 affirmed defendant’s SDNY convictions. Defendant was convicted after a jury trial before Judge Ronnie Abrams, of conspiracy to commit health care fraud, health care fraud, and conspiracy to violate the anti-kickback statute.  CA2 rejected defendant’s contentions that the district court (1) abused its discretion when it precluded him from questioning a special agent about how he executed a search warrant for a co-defendant’s cellphone, (2) abused its discretion by not admitting certain out-of-court statements of the dental clinic’s former biller, as statements against penal interest pursuant to Federal Rule of Evidence 804(b)(3), and (3) allowing the prosecutor to engage in misconduct during summation.

CA2 found that: (1) the probative value of any testimony defendant sought to elicit from the agent was outweighed by the danger of unfair prejudice and, in any event, the district court’s decision to preclude defendant constituted harmless error; (2) the statements by the biller were “characterizations” and not purported statements of fact, and were, therefore, properly excluded; and (3) none of the statements that defendant identified, some of which he objected to at trial and some of which he did not, constituted prosecutorial misconduct significant enough to have deprived him of a fair trial.

As to the third point, CA2 explained that a defendant “must show more than that a particular summation comment was improper. He must show that the comment, when viewed against the entire argument to the jury and in the context of the entire trial, was so severe and significant as to have substantially prejudiced him, depriving him of a fair trial.” See United States v. Farhane, 634 F.3d 127, 167 (2d Cir. 2011). Here, without repeating the prosecutor’s comments, CA2 merely noted that they did not deprive defendant of a fair trial. It’s worth noting that unless we object at trial, we will be stuck with the plain error standard of review. See United States v. Williams, 690 F.3d 70, 75 (2d Cir. 2012).

CA2’s decision can be found here.

In Marshall v. United States, in a summary order, CA2 affirmed SDNY Judge Alison J. Nathan’s denial of defendant’s motion for a writ of error coram nobis. CA2 found that, although counsel may have rendered deficient performance, defendant was not prejudiced.

Defendant was the founder of Marshall, Tucker & Associates, LLC (MTA), a financial consulting firm. From 2000 to 2008, he was also a member of the board of directors for the International Securities Exchange (ISE). Over several months in 2006 and 2007, defendant provided to his partner at MTA non-public information about a potential merger involving ISE. Defendant did this with the knowledge that his partner planned to trade based on that information.

Based on this conduct, defendant was charged with, and pleaded guilty to, one count of conspiring to commit securities fraud in violation of 18 U.S.C. § 371 in 2008. He was sentenced to 18 months of imprisonment.

Ten years later, he filed a coram nobis petition, arguing that he was actually innocent of the crime, because he never expected to receive any benefit in exchange for the tips he gave to his partner. He further argued that his attorney provided ineffective assistance by failing to advise him of the “personal-benefit” element required to sustain a conviction based on tipping.

The government never disputed that plea counsel’s representation was deficient. CA2 also found that an objectively competent attorney would have advised defendant of the personal-benefit element before permitting him to plead guilty. CA2, nonetheless, agreed with the district court that defendant had not shown prejudice because the government had sufficient evidence that defendant and his partner had agreed to split profits from the trades, and the partner would have testified to that agreement if called as a witness at trial. CA2 found that there was no reasonable possibility that defendant would have chosen to reject the guilty plea and go to trial in the face of the government’s evidence.

CA2’s decision can be found here.

In United States v. Piper, in a summary order, CA2 remanded defendant’s EDNY child pornography convictions back to Judge Ann M. Donnelly for further proceedings on the issue of the sentence. Judge Donnelly had sentenced defendant to 42 months of imprisonment with five years of supervised release.

Defendant argued that, prior to sentencing, the government misstated the statutory maximum sentence for this crime. The presentence report stated that the statutory range was 0-20 years, but was, in fact, 0-10 years.

CA2 remanded for the district court to determine and explain whether it would have imposed the same sentence absent the sentence-range error.


CA2 also asked the district court to address whether supervised release conditions were correctly imposed. Defendant objected to two of the special conditions. Special condition “3” stated that defendant “shall not associate with children under the age of 18, unless a responsible adult is present and he has prior approval from the Probation Department.” Special condition “8” required defendant to “notify [his] employer of [his] Internet-related child pornography offense, if [his] job requires computer access with Internet capability in a private setting, or if the job caters to or employs minors.” Defendant contended that the special conditions amounted to an occupational restriction and that the court erred by not adequately explaining its reasons for the conditions. Prior to his conviction, defendant was an art teacher at a youth development organization. CA2 found the district court’s explanation for imposing the conditions inadequate.


CA2’s decision can be found here.



In United States v. Kelsey, in a summary order, CA2 affirmed defendant’s District of Connecticut sex-trafficking convictions. CA2 rejected defendant’s contentions that (1) he was unfit to stand trial, (2) that the district court erroneously denied his last-minute request for new counsel, and (3) that the district court made a series of erroneous evidentiary rulings. CA2 remanded on limited grounds, finding that the district court plainly erred in ordering that defendant begin making restitution immediately notwithstanding its finding that defendant lacked the ability to pay. CA2 ordered that, when fashioning a payment schedule on remand, the district court should take account of the mandatory factors laid out in 18 U.S.C. § 3664(f)(2) and construct a payment schedule supported by the record and its findings, including additional findings it may deem appropriate, concerning defendant’s ability to pay.


CA2’s decision can be found here.



In United States v. Tapia, in a summary order, CA2 affirmed defendant’s EDNY convictions for importation of cocaine, and possession of cocaine with intent to distribute, after a jury trial before Judge LaShann DeArcy Hall. CA2 rejected, among other things, defendant’s challenge to several evidentiary rulings, and the court’s interested witness charge.


CA2’s decision can be found here.



On Wednesday, in United States v. Avery, in a summary order, CA2 vacated the 12-month sentence imposed by SDNY Chief Judge Colleen McMahon, following defendant’s violation of supervised release, and remanded the case for resentencing, agreeing with defendant that the court violated his right to presentence allocution.


The district court made multiple statements at the beginning of the sentencing hearing indicating that it would sentence defendant to 12 months of imprisonment to reach a total of 120 months of imprisonment for the underlying offense and the violation of supervised release. Judge McMahon began the hearing, “We will do whatever we have to do so that Mr. Avery ends up with 120 months.”


CA2 agreed with defendant that there was a difference between speaking to a judge when the slate is clean and speaking after sentencing in an effort to convince the judge to change her mind.


CA2 took the additional step of directing that a different judge be assigned on remand. CA2 found that, given the court’s “repeated and unwavering statements” that defendant should be sentenced to a total of 120 months, the judge would have “substantial difficulty” in putting such a view out of her mind.


CA2’s decision can be found here.



In United States v. Atias, in a summary order, CA2 affirmed defendants’ EDNY bank fraud, conspiracy to commit bank fraud, and theft of government funds convictions, after a jury trial before Judge Denis R. Hurley. CA2 rejected defendants’ contentions that (1) the district court committed reversible error in allowing a witness to invoke the Fifth Amendment and on that basis to decline to provide testimony defendants sought from him, (2) the district court erred by failing to give missing-witness and conscious-avoidance instructions, (3) the district court wrongfully limited defendant’s testimony, (4) that the evidence was insufficient to prove theft of government funds, and (5) that the restitution was erroneously calculated.


CA2’s decision can be found here.



New York Court of Appeals


In People v. Williams, in an opinion written by Judge Fahey, NYCA ruled that it was error to admit the results of the Office of the Chief Medical Examiner’s (OCME) Low-Copy Number (LCN) DNA tests, and its Forensic Statistical Tool (FST) without conducting a Frye hearing. OCME’s LCN testing had been used by it for testing DNA when only trace amounts of DNA were recovered. The FST was used by OCME when trace amounts of DNA were found, and the DNA recovered contained a mixture of DNA from more than one person. NYCA found that it was error to admit the results of both tests because defense counsel had raised questions as to whether they were generally accepted as reliable by experts in the field, but that the error was harmless under the circumstances of this case. NYCA also found that even tests that were once agreed to be reliable could be subject to reconsideration under Frye, when questions as to their reliability arise.


NYCA’s decision can be found here.



In People v. DeLorbe, in an opinion written by Judge Garcia, NYCA ruled that a non-citizen defendant cannot challenge his guilty plea on appeal for the court’s failure to provide defendant with a Peque warning—i.e., that, if he pleads guilty, he may be deported—where the defendant has been provided with a written notice of immigration consequences by the District Attorney at arraignments.


NYCA’s decision can be found here.



Appellate Division, First Department


In People v. Ochoa, AD1 vacated defendant’s six-year sentence, imposed by Bronx County Supreme Court Judge Steven Barrett, finding that it was error to conclude that defendant was presumptively ineligible for youthful offender treatment. AD1 found that defendant’s conviction of criminal possession of a weapon in the second degree, for “possess[ing] a loaded firearm” (Penal Law § 265.03[1][b]) was not an “armed felony” within the meaning of CPL 720.10(2)(a).

AD1’s decision can be found here.

In People v. Trammel, in a signed opinion by Judge Sallie Manzanet-Daniels, AD1 reversed defendant’s New York County first-degree robbery convictions, and the fifty-year to life sentence imposed by Judge Richard D. Carruthers, finding that the denial of defendant’s repeated requests to proceed pro se deprived him of his right to represent himself. Defendant’s repeated and insistent requests to proceed pro se were erroneously denied. His initial requests were denied summarily, without the requisite inquiry to ensure that the waiver was knowingly and intelligently made.


AD1 found that, while giving lip service to defendant’s right to represent himself, the court nonetheless foisted counsel on defendant over defendant’s vigorous protests.


AD1’s decision can be found here.



Appellate Division, Second Department


On Wednesday, in People v. Weeks, AD2 reversed defendant’s Queens County weapons possession conviction, finding that Judge Barry Schwartz erroneously denied defendant’s suppression motion.


Defendant parked his car in a visitor’s parking spot outside the 113th precinct and entered the station house to recover the belongings of a friend who had been arrested. Defendant provided a police officer with identification. The officer then searched the defendant’s name in a police database, discovered that the defendant had an outstanding bench warrant, and arrested the defendant. The officer then impounded the defendant’s car and, during an inventory search, discovered a handgun, a samurai sword, and a marijuana cigarette.


AD2 found that the People failed to establish that the defendant’s car was lawfully impounded and subjected to an inventory search. The arresting officer testified that the defendant’s car was legally parked in a visitor’s parking space, and the officer was unaware of posted time limits for visitor parking spaces. Although the officer testified that he impounded the defendant’s car to safeguard the defendant’s property against a potential burglary, the People presented no evidence demonstrating any history of burglary or vandalism in the area where the defendant had parked his vehicle. Thus, the People failed to establish that the impoundment of the defendant’s car was in the interests of public safety or part of the police’s community caretaking function.


AD2’s decision can be found here.


[1] Not a point on appeal, but something to keep in mind, is that the exception not only requires that the statement was against declarant’s interest when made but that it also “is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.” FRE 804(b)(3)