On Behalf of | Feb 8, 2021 | Ed Sapone’s Decisions of the Week

The Circuit released no precedential opinions in criminal cases this past week, but its decision in Minaya, presents an interesting snapshot of where the law stands on 924(c) predicate offenses in the aftermath of the Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319 (2019).

The state courts were relatively quiet this week, but AD1’s decision in Nunez is worth a read.

Second Circuit

In United States v. Buissereth, in a summary order, CA2 affirmed the finding of EDNY Judge Sandra J. Feuerstein that defendant had violated the conditions of his supervised release and her imposition of a new term of imprisonment and supervised release, but vacated the risk-notification condition.

The government conceded that the district court’s imposition of the previously standard risk-notification condition was unlawful based on CA2’s decision in United States v. Boles, 914 F.3d 95 (2d Cir.), cert. denied 139 S.Ct. 2659 (2019). The risk condition stated:

If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the person and confirm that you have notified the person about the risk.

Boles had held that an identically worded condition was too vague and afforded too much discretion to the probation officer. CA2 vacated and remanded for the district court to consider whether to impose a revised risk notification condition and, if it imposes such a condition, to clarify its scope such that it is consistent with Boles.

CA2’s decision can be found here.

In United States v. Minaya, in a summary order, CA2 affirmed in part and vacated in part defendant’s SDNY convictions. Following a jury trial in 2013, defendant was convicted of twelve counts, including, as relevant here, four counts of using or carrying a firearm in furtherance of a “crime of violence” as defined in 18 U.S.C. § 924(c)(3). Judge John F. Keenan sentenced defendant to a 92-year term of imprisonment to be followed by five years of supervised release.

In United States v. Rodriguez, 761 F.App’x 53 (2d Cir. 2019) (summary order), CA2 affirmed defendant’s conviction and sentence, rejecting defendant’s argument that his § 924(c) conviction as charged in Count Three was invalid because conspiracy to commit Hobbs Act robbery is not categorically a crime of violence. Defendant petitioned the Supreme Court for certiorari on that issue. In 2019, the Supreme Court vacated the judgment and remanded back to CA2 for further consideration in light of the Supreme Court’s then-recent decision in United States v. Davis, 139 S. Ct. 2319 (2019).

On remand, CA2 ordered the parties to submit supplemental briefing addressing the effect of Davis on CA2’s prior decision that Hobbs Act robbery conspiracy is categorically a crime of violence and on the question of whether kidnapping conspiracy in violation of 18 USC § 1201(c) is a crime of violence for purposes of § 924(c)(3)(A).

Defendant’s four convictions under § 924(c)(1) rested on the following charged conduct:

Count Three: using or carrying a firearm in furtherance of Count One, conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951, and Count Two, conspiracy to commit kidnapping in violation of 18 U.S.C. § 1201(c);

Count Six: using or carrying a firearm in furtherance of Count Four, Hobbs Act robbery in violation of 18 U.S.C. § 1951, and Count Five, kidnapping in violation of 18 U.S.C. § 1201(a);

Count Twelve: using or carrying a firearm in furtherance of Count Ten, Hobbs Act robbery in violation of 18 U.S.C. § 1951, and Count Eleven, kidnapping in violation of 18 U.S.C. § 1201(a); and

Count Fourteen: using or carrying a firearm in 13 furtherance of Count Thirteen, Hobbs Act robbery in violation of 18 U.S.C. § 1951.

CA2 had previously held, in United States v. Barrett, 937 F.3d 19 126, 129 (2d Cir. 2019), that conspiracy to commit Hobbs Act robbery does not qualify as a crime of violence under the force clause, § 924(c)(3)(A).

In light of Davis and Barrett, CA2 concluded that conspiracy to commit federal kidnapping was unlikely to satisfy the relevant definition of a crime of violence. CA2 found it unnecessary to decide that question here, because the government no longer pressed the argument that conspiracy to commit kidnapping—which it had previously determined qualified as a crime of violence under the now-invalidated residual clause of § 924(c)(3)— should be treated as a crime of violence. Because the government now agreed with defendant that his conviction for Count Three, dually predicated on the two different conspiracies, was invalid, CA2 vacated defendant’s conviction under Count Three.

With respect to Counts Six and Twelve, defendant argued that substantive kidnapping is not a crime of violence after Davis, leaving one valid predicate (a substantive Hobbs Act robbery) and one arguably invalid predicate (substantive kidnapping). According to defendant, because the record did not show whether the jury rested its verdict on a valid or an invalid predicate, his convictions on these counts must be set aside.

CA2 found any possible error harmless. The crimes charged under both Counts Six and Twelve were based on two singular incidents of criminal conduct: combined robbery-kidnappings that occurred on December 21, 2010 (Count Six), and on May 15, 2011 (Count Twelve). In both incidents, a group, including defendant, attacked the victim, forced him into a van, and then robbed him. A firearm was used during both incidents, either to assault or threaten to assault the victim. Under these circumstances, CA2 had no doubt that a rational juror would have convicted defendant on the § 924(c) charge even had Hobbs Act robbery been the sole predicate charged.

Defendant’s § 924(c) conviction for Count Fourteen was predicated on a single act of Hobbs Act robbery, one that was substantively charged in Count Thirteen and occurred on June 10, 2011. Because substantive Hobbs Act robbery is a crime of violence under the force clause in § 924(c)(3)(A), that conviction was unaffected by Davis.

 CA2’s decision can be found here.

Appellate Division, First Department

In People v. Nunez, AD1 reversed defendant’s NY County weapon possession conviction finding that supreme court erroneously allowed the prosecution to reopen a Huntley hearing, and that it had erroneously allowed, as background, the admission of too much evidence about defendant’s involvement in a large-scale drug trafficking operation.

The People had noticed two statements defendant made while in custody following his arrest. In each, defendant was overheard urging a codefendant, who was his girlfriend, to tell the authorities that she was the possessor of a pistol recovered at the apartment where they were arrested. The first statement was overheard by a special agent while defendant and the codefendant were in a holding cell. The second statement was overheard by a detective while defendant and the codefendant were being driven to Central Booking. At the initial Huntley hearing, the People called the special agent as a witness, but not the detective. The court ruled that the statement overheard by the special agent was admissible. No evidence was presented regarding the later statement overheard by the detective.

Sixteen months later the prosecutor asked to reopen the Huntley hearing. He told the court that the special agent was no longer available to testify because he had been transferred to an assignment outside the United States. The prosecutor wanted the court to reopen the suppression hearing to allow the detective to testify to the statement he allegedly overheard. The court granted the application over defense objection, and, after the detective’s testimony at the reopened hearing, ruled that the statement to which the detective testified was admissible. The special agent did not testify at trial, and only the statement overheard by the detective was received in evidence.

AD1 held that the court should not have reopened the Huntley hearing. The prosecution had had a full and fair opportunity at the initial hearing to present both of its witnesses and seek admission of both statements but chose not to.

AD1 also found that, while some evidence regarding the drug trafficking crimes with which defendant’s girlfriend and her relatives were charged was relevant to provide background regarding the search of the apartment where the pistol was found and defendant was arrested, and to prove that defendant’s possession of the pistol was knowing, the court’s ruling went too far. The “very extensive” evidence admitted was unnecessarily prejudicial and independently warranted reversal.

AD1’s decision can be found here.

In People v. DeBlasio, AD1 reversed defendant’s NY County conviction for making a terroristic threat, finding that the evidence was legally insufficient to show that defendant had “intent to intimidate or coerce a civilian population.”

At the end of an altercation, defendant threatened to shoot “you guys,” referring to several Bangladeshi worshippers at defendant’s mosque. There was no evidence that defendant had any animus toward Bangladeshi people. AD1 found that to conclude that defendant’s act amounted to a terroristic threat would trivialize the definition of terrorism by applying it loosely in situations that do not match the collective understanding of what constitutes a terrorist act.

AD1’s decision can be found here.