Federal Defenders of New York Second Circuit Blog

Colleen Cassidy

Government operation of child pornography website to catch visitors is not outrageous government misconduct and the good faith exception applied to evidence found through a warrant based on the site.

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United States v. Caraher, No. 18-511 (2d Cir. August 25, 2020)(Hall, joined by Lynch and Menashi), involved the government’s takeover and operation of the child pornography website “Playpen” for two weeks so that it could track visitors to the site, identify their identities and locations, and search their computers. The FBI obtained a warrant allowing … Read more

Reliability challenge to a new testing technique, “computerized voice stress analyzer,” to verify compliance with supervised release, is not ripe for review until supervision begins.

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In United States v. Birkedahl, No. 19-2304 (2d Cir. Aug. 25, 2020), the Second Circuit (Sullivan, joined by Park and Nardini)) rejected a challenge to a special condition of supervised release requiring testing by “computerized voice stress analyzer (CVSA)” to verify the defendant’s compliance with conditions in a child pornography possession case. Birkedahl had contested … Read more

Circuit Holds That New York Offense of Possession of a Sexual Performance By a Child (N.Y. Penal Law §263.16) Categorically Matches 18 U.S.C §2252(a)(4)(B) and Is an Aggravated Felony Under the INA.

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In Quito v. Barr, __ F.3d __ 2020 WL 218590 (2d Cir. Jan. 15, 2020) (Wesley, Livingston, Bianco),  the Second Circuit held that attempted possession of a sexual performance by a child under N.Y. Penal Law §263.16 is an aggravated felony under the INA because it categorically fits the definition of the federal offense of … Read more

Second Circuit Holds that a Foreign National in a Stateless Vessel Can Be Convicted Under the Maritime Drug Law Enforcement Act Where the Offense Has No Nexus to the United States.

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In United States v. Van Der End, No. 17-2926 (Nov. 14, 2019) the Court of Appeals affirmed the drug trafficking conviction of a Netherlands national intercepted at sea with cocaine bound for Canada. The defendant challenged the court’s subject matter jurisdiction and the constitutionality of the Maritime Drug Law Enforcement Act (“MDLEA”), and the government … Read more

Judge Rakoff Orders Discovery On Defense Claim of Racially Selective Enforcement By “Reverse Stings”

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In an Opinion and Order in United States v. Lopez, 19-cr-323 (S.D.N.Y. November 13, 2019), Judge Rakoff ordered initial discovery on the defense claim that DEA agents targeted racial minorities in their reverse sting drug robbery operations. In this reverse sting, confidential informants working with the DEA recruited the defendants, all men of color, to … Read more

Second Circuit Affirms 4-level Enhancement For Using Or Possessing A Firearm “In Connection With Another Felony Offense.”

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In United States v. Ryan, No. 17-3919 (2d Cir. Aug. 16), the Circuit affirmed the application of this enhancement under Guideline 2K2.1(b)(6)(B) based on the defendant’s sale of a firearm and drugs in the same transaction to a person to whom he had sold drugs in the past (an informant). The Court held that the … Read more

Second Circuit Remands For Resentencing Because of Uncertainty About Whether the Judge Understood That he Could Consider the Severity of Mandatory Consecutive Minimum Sentences In Sentencing for the Predicate Offenses.

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In United States v. Brown, No. 18-834 (2d Cir. Aug. 16, 2019), the Court of Appeals reversed a 39-year sentence and remanded for resentencing because it was uncertain whether the judge understood his discretion, after the Supreme Court’s decision Dean v. United States, 137 S.Ct. 1170 (2017), to consider the severity of the mandatory consecutive … Read more

Circuit Upholds, On Good Faith Grounds, A Search Warrant Issued By An Out-of-District Magistrate In Violation of Former Rule 41(b)and 28 U.S.C. §636(a).

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United States v. Eldred, No. 17-3367-cr (August 9, 2019) involved a Network Investigative Technique warrant, essentially a government hacking tool that penetrates an anonymous “dark” web site to gain identifying data from computers communicating with the site. The warrant was issued by a magistrate judge in Virginia, but was used to obtain the IP address … Read more