FDNY Staff Making Supreme Court review a virtual certainty, today the Eleventh Circuit joined the Second in holding that § 924(c)’s residual clause, 18 U.S.C. § 924(c)(3)(B), is not unconstitutionally vague. See United States v. Ovalles (11th Cir. Oct. 4, 2018) (en banc), opinion available here. There is now a 3-2 circuit split. Three Circuits have held that § 924(c)(3)(B) … Read more
(This post has been updated to discuss the amended opinion in Fiseku.) The Second Circuit issued an opinion this week containing some facially incorrect, and substantively troubling, dicta concerning tits recent decision in Barrett. See United States v. Fiskeu, No. 17-1222 (2d Cir. 2018) (Cabranes, Lynch, Carney) (appeal from Engelmayer, J., S.D.N.Y.), opinion available here. … Read more
A Second Circuit panel held today that, under the force clause of the subsequently revised U.S.S.G. § 2L1.2 (2014), all degrees of New York robbery are crimes of violence. United States v. Pereira-Gomez, No. 17-952 (2d Cir. 2018) (Cabranes, Carney, Caproni (SDNY)) (appeal from Azrack, J., EDNY), opinion available here. Despite this holding, practitioners are urged … Read more
Magistrate Judge Gold (SDNY) recently issued a Report & Recommendation (R&R), available here, concluding that third degree New York robbery, N.Y. Penal Law §160.05, is not a violent felony under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). See Baldwin v. United States, No. 16-CV-3350. Judge Korman has adopted the R&R. Judge Gold’s reasoning … Read more
Today the Second Circuit issued an opinion holding that a non-U.S. citizen, employed by a foreign company, could not be prosecuted for conspiracy to violate the Foreign Corrupt Practices Act (FCPA). See United States v. Hoskins, No. 16-1010 (2d Cir. 2018) (Katzmann, Pooler, Lynch). The opinion is a statutory interpretation tour de force. Of course, … Read more
Last week the Second Circuit held that NY Penal Law § 220.31 (fifth-degree criminal sale of a controlled substance) is not a “controlled substance offense” under USSG 4B1.2(b). See United States v. Townsend, No. 17-757 (2d Cir. 2018) (Cabranes, Carney, Vilardo (W.D.N.Y.)) (appeal from Irizarry, C.J., E.D.N.Y.). The opinion is available here. The upshot of Townsend … Read more
In a short and interesting opinion, available here, the Second Circuit held today that (1) a defendant did not waive her right to appeal a restitution order on the ground that it covered conduct outside the statute of limitations period, and (2) that violations of 18 U.S.C. § 641 (embezzlement of government property) are not … Read more
Bloomberg News has an article (behind a paywall) that surveys Judge (and presumptive Justice) Kavanaugh’s criminal law jurisprudence. The short story is that Judge Kavanaugh has been very bad for criminal defendants; one former SDNY prosecutor predicts that “he will be a reliable vote for the government in criminal cases, along the lines of Justice … Read more
The National Association of Criminal Defense Lawyers (NACDL) recently released a report that is somewhat provocatively, but fairly, titled: The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It. The report, available here, offers a succinct assessment of the legal and institutional pressures that coerce 97% … Read more
Last week Judge Weinstein issued a remarkable opinion, available here, terminating supervised release for a defendant who, apart from habitual marijuana use, has committed no crimes since his release from prison. See United States v. Trotter, No. 15-cr-382, DE 543 (E.D.N.Y. July 5, 2018). The lengthy-but-readable opinion is worth reading in its entirety, particularly for … Read more