Federal Defenders of New York Second Circuit Blog

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Evidentiary Errors Prompt Second Circuit to Vacate Forced-Labor Convictions.

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Our friend Alexandra Shapiro of Shapiro Arato Bach, LLP, earned an important victory this week in United States v. Dan Zhong, No. 19-4110 (2d Cir. Feb. 23, 2022), persuading the Court to vacate her client’s conviction on three forced-labor charges. (While the Court affirmed the defendant’s convictions on two other counts, those convictions carry far … Read more

Circuit Vacates LIBOR-Rigging Convictions For Insufficient Evidence

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In United States v. Connolly, No. 19-3806 (2d Cir. Jan. 27, 2022), the Circuit (Kearse, joined by Cabranes and Pooler) reversed convictions for substantive wire fraud and for conspiracy to commit wire fraud and bank fraud for insufficient evidence. This is a LIBOR-rigging prosecution. LIBOR (the “London Interbank Offered Rate”) was an interest-rate benchmark, published … Read more

Second Circuit Affirms El Chapo’s Conviction

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In United States v. Beltran Leyva (Guzman Loera), No. 19–2239 (2d Cir. Jan. 25, 2022), the Circuit (Newman, joined by Lynch and Park) affirmed the conviction of Guzman Loera (“El Chapo”), the former leader of the Sinaloa Cartel, for conducting a continuing criminal enterprise, and for drug trafficking, firearms, and money laundering offenses. The Circuit rejected … Read more

A district court may consider the defendant’s future earning potential to conclude that the defendant is “non-indigent” and thus subject to the mandatory $5,000 “special assessment” under 18 U.S.C. § 3014(a)

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Section 3014(a) of Title 18, enacted as part of the Justice for Victims of Trafficking Act of 2015 (“JVTA”), requires district courts to impose a $5,000 special assessment on “non-indigent” persons convicted of certain sex- and trafficking-related offenses.1 Carlos Rosario is an indigent person represented by this Office. After he pleaded guilty to three qualifying … Read more

A substance can be an “analogue” of fentanyl for purposes of 21 U.S.C. § 841(b)(1)(B)(vi) — requiring a 5-year minimum sentence where the offense involved “10 grams or more of a mixture or substance containing a detectable amount of any analogue of” fentanyl — even if it does not qualify as a “controlled substance analogue” under 21 U.S.C. § 802(32).

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Torri McCray was charged under 21 U.S.C. § 841(b)(1)(B)(vi) for distributing 10 grams or more of “butyryl fentanyl,” an analogue of fentanyl under the ordinary meaning of the term “analogue.” As Webster’s New Collegiate Dictionary puts it, an “analogue” in the relevant chemistry context is “a chemical compound structurally similar to another but differing often … Read more

Police can’t chase a suspected misdemeanant into his home without a warrant—except when they can, which is probably most of the time.

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In Lange v. California, No. 21-18, 594 U.S. __ (June 23, 2021), the Supreme Court holds that pursuit of a fleeing misdemeanor suspect does not categorically qualify as an exigent circumstance that permits police to enter a home without a warrant. That is: if a New York police officer tries to stop and ticket you … Read more

Raising an unpreserved Rehaif claim? You now face an “uphill climb.”

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Anyone appealing a criminal conviction is used to uphill battles. Now there is one more. In a near-unanimous decision issued today, the Supreme Court held that the strict plain-error test applies to unpreserved Rehaif claims, explicitly stating that anyone raising this type of claim faces an “uphill climb.” Why? According to Kavanaugh, J., writing for … Read more

Supreme Court overrules the “watershed rule of criminal procedure” portion of Teague v. Lane.

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The issue in Edwards v. Vannoy, decided May 17, 2021, was whether the Supreme Court’s decision in Ramos v. Louisiana, 140 S. Ct. 1390 (2020), will apply retroactively to cases on federal collateral review.  Ramos is the case which decided that unanimous jury verdicts are required in state felony cases, thus outlawing the non-unanimous jury … Read more

Second Circuit: 21 U.S.C. § 848(e)(1)(A) Is Not A “Covered Offense” For Purposes Of First Step Act Resentencing.

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In United States v. Gilliam, the Second Circuit (Nardini, joined by Katzmann and Wesley), held that drug-related murder, in violation of 21 U.S.C. § 848(e)(1)(A), is not a “covered offense” for purposes of First Step Act resentencing. Gilliam killed a rival drug dealer and pleaded guilty to § 848(e)(1)(A), which punishes “any person engaging in … Read more