Federal Defenders of New York Second Circuit Blog

Panel affirms R. Kelly’s RICO and Mann Act convictions and 30-year prison sentence; Judge Sullivan objects to “windfall” restitution of brand-name medication for herpes-infected victim.

Judge Chin’s opinion in United-States-v.-Robert-Sylvester-Kelly, 2d Cir. No. 22-1481 (L) (Feb. 12, 2025), joined almost entirely by Judges Carney and Sullivan, affirms the singer R. Kelly’s conviction for RICO and Mann Act offenses, as well as his 30-year prison sentence and a restitution award of $300,668 to “Jane,” a minor whom Kelly infected with herpes … Read more

The Second Circuit holds that, despite the erroneous jury instructions defining the “crime of violence” required for a § 924(c) conviction — allowing the jury to convict the Petitioners based on predicate offenses that didn’t necessarily require the actual or threatened use of force — the Petitioners failed to show that the instructional errors “resulted in prejudice that would entitle them to the relief they [sought] under 28 U.S.C. § 2255.” Nardino Colotti, et al. v. United States, Nos. 21-932(L), 21-937(CON), 21-950(CON), 21-992(CON), 21-1548(CON), __ F.4th ____ (2d Cir. June 21, 2023) (C.J.J.’s Leval, Parker, Menashi).

Background This is an appeal from a district court judgment denying the Petitioners’ motions, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct their convictions under 18 U.S.C. § 924(c).  The Circuit affirms the district court. The Petitioners were convicted after a jury trial — conducted “in late 2005 and early 2006″ … Read more

Second Circuit affirms conviction of payday-loan lender on RICO and Truth in Lending Act (“TILA”) charges. United States v. Moseley, __F.3d__, No. 18-2003-cr, 2020 WL 6437737 (2d Cir. Nov. 3, 2020) (Circuit Judges: Kearse, Carney, Bianco).

In  United States v. Moseley, No.18-2003, 2020 WL 5523210 (2d Cir. Nov. 3,  2020) , the Second Circuit holds that the choice-of-law provisions in the defendant’s payday-loan agreements — which named  3 jurisdictions that don’t have usury laws — were unenforceable under New York law, so  the usury laws of New York applied in the … Read more

Circuit Reverses Convictions For Aiding And Abetting VICAR Murder For Insufficient Evidence

In United States v. Anastasio, the Circuit (Carney, joined by Jacobs and Pooler), reversed two convictions for aiding and abetting VICAR murder, 18 U.S.C. § 1959(a)(1), for insufficient evidence. Specifically, the Circuit held that Anastasio undertook no affirmative act that facilitated the murders; he had merely been in the company of the murderers, without offering … Read more

Circuit Vacates LWOP Sentence Based On Inadequate Consideration Of Juvenile Offender’s Age

In United States v. Delgado, the Circuit (Pooler, joined by Jacobs and Carney) vacated a life sentence imposed on a 17-year-old convicted of two murders, on the ground that the district court had failed to give the requisite consideration to the defendant’s age, as required by Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery … Read more

The Supreme Court held in United States v. Davis that the so-called “residual clause” of 18 U.S.C. 924(c)(3)(B) is void for vagueness

The Supreme Court held in United States v. Davis that the so-called “residual clause” of 18 U.S.C. 924(c)(3)(B) is void for vagueness. This means that the only way a crime can qualify as a “crime of violence” for purposes of Section 924(c) is under the “elements” (or “force”) clause of 18 U.S.C. 924(c)(A). That clause defines … Read more

Cain is Able

United States v. Cain, 09-0707-cr (2d Cir. January 31, 2012) (Newman, Lynch, CJJ, Restani, JCIT) This is a case, oddly enough, about trees. Appellant David Cain, Jr., proprietor of David’s Tree Service, assisted by his brother, Chris Cain, a cousin, Jamie Soha, and others, was trying to corner the tree service and logging market in … Read more

Racket Club

United States v. Applins, No. 07-2193-cr (2d Cir. March 1, 2011) (Miner, Sack, Hall, CJJ) This decision closes a hole in the Second Circuit’s RICO jurisprudence. The appellants, drug dealers who were members of something called the Elk Block gang, were convicted of RICO conspiracy under 18 U.S.C. § 1962(d) in the Northern District of … Read more