Federal Defenders of New York Second Circuit Blog

Darrell Fields

Second Circuit upholds conviction for insider trading. United States v.  Chow, No. 19-0325, __F.3d__, 2021 WL 1256649 (2d Cir. Apr. 6, 2021) (C.J.J. Kearse, Carney, Bianco).

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Benjamin Chow was a high ranking corporate officer at a couple of Chinese State-owned firms that, in 2016, tried to acquire Lattice Semiconductor Corporation, a manufacturer of a type of semi-conductor used in smart-phones. Op. 4, 5. Mr. Chow was alleged to have tipped off someone he knew, named Michael Yin, about the progress of … Read more

Pity the poor taxpayer: Appellant goes to a federal building to get tax forms and has an argument with “aggressive” “court security officers (‘CSOs’),” resulting in a misdemeanor conviction that is affirmed in United States v. Wasylyshyn, 979 F.3d 165 (2d Cir. Nov. 3, 2020) (Chief Judge Livingston; Circuit Judge Carney; District Judge Richard M. Berman).

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The Appellant in United States v. Wasylyshyn, 979 F.3d 165 (2d Cir. 2020) was convicted of creating a loud noise and nuisance at the Binghamton federal courthouse, in violation of  41 C.F.R. § 102-74.390(a), after getting into an argument with two court security officers (“CSOs”). Id.  at 168. Although the Circuit was “troubled by [the] … Read more

Second Circuit affirms conviction for conspiracy to distribute synthetic cannabinoids, under the Analogue Act, 21 U.S.C. § 813(a). United States v Requena, 980 F.3d 30 (2d Cir. Nov. 4, 2020) (Livingston, Chief Judge; Kearse and Walker, Circuit Judges).

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Defendants Brian Racine and Andrew Raymond ran a business producing and selling synthetic marijuana between 2013 and 2015. At the time, “synthetic” cannabinoids weren’t listed on the federal controlled substances schedules. Instead, the government charged that these substances were “controlled substance analogues” under the Controlled Substance Analogue Enforcement Act of 1986 (“Analogue Act”), 21 U.S.C. … 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).

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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

Second Circuit affirms the convictions of two N.Y. correction officers for civil rights conspiracy and false records charges, under 18 U.S.C. §§ 241 and 1519, based on an assault of an inmate. United States v. Scott, __F.3d__, No. 18-2882-cr, 2020 WL 6494642 (2d Cir. Nov. 5, 2020) (C.J.J. Kearse, Sullivan, Park).

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Defendants-Appellants Kathy Scott and George Santiago, Jr. are former correction officers with the New York State Department of Correction and Community Supervision (“DOCCS”) at the Downstate Correctional Facility in Fishkill, New York. The evidence at their jury trial was that “Scott and Santiago, along with other officers of DOCCS, assaulted Kevin Moore, an inmate at … Read more

Second Circuit reverses the denial of a motion to suppress a firearm found during a frisk, following a traffic stop, because the officers lacked objective reasons to believe the defendant was armed and dangerous. United States v. Weaver, __F.3d__, No. 18-1697-cr, 2020 WL 5523210 (2d Cir. Sept. 15, 2020).

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In United States v. Weaver, No.18-1697, 2020 WL 5523210 (2d Cir. Sept. 15, 2020) , the Second Circuit holds that police officers didn’t have reasonable suspicion that Weaver was armed and dangerous when, after ordering him out of the car, they made him place his hands on the car’s trunk, with his legs spread apart. … Read more

Second Circuit: On a motion under the First Step Act, a court isn’t obligated to “recalculate” the Sentencing Guidelines range to account for new Guidelines provisions “or new judicial interpretations of existing Guidelines.” Only Guideline-changes “that flow from the Fair Sentencing Act of 2010” have to be considered. But there’s an acknowledged circuit split. United States v. Moore, __F.3d__, No. 19-1390-cr, 2020 WL 5523205 (2d Cir. Sept. 15, 2020).

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In United States v. Moore, No. 19-1390-cr (available here), the Circuit (Nardini, joined by Chin and Sullivan), holds that, on a motion for a sentence reduction under Section 404 of the First Step Act, a court isn’t required to “recalculate” the Guidelines range under the current law, unless (and only to the extent) the Fair … Read more

Remedy for a violation of the prompt-presentment rules of Fed.R.Crim.P. 5(c)(2) (concerning the “initial appearance” of someone arrested in a district “other than where the offense was allegedly committed”) isn’t “dismissal of the criminal case,” but an evidentiary sanction. In addition, a magistrate judge’s failure to sign the jurat on the last page of the supporting affidavit of the criminal complaint doesn’t render the complaint invalid, under Fed.R.Crim.P. 3, because the magistrate signed the criminal complaint, thereby attesting that the affiant’s assertions had been sworn before the magistrate. United States v. Peeples, No. 18-2309-cr, __F.3d__, 2020 WL 3406445 (June 22, 2020).

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I.  Remedy for a violation of Fed.R.Crim.P. 5(c)(2) Fed.R.Crim.P. 5(c)(2) governs the place for the “initial appearance” of someone “arrested in a district other than where the offense was allegedly committed” and the circumstances permitting the person’s transfer to a district outside the place of arrest. See Fed.R.Crim.P. 5(c)(2). In United States v. Peeples, No. … Read more

In a felon-in-possession case (18 U.S.C. § 922(g)), a person charged in a single count with possessing a firearm on two separate dates, during a six-day period, isn’t entitled to an instruction that the jury “must agree unanimously on a particular date or dates on which he possessed a firearm.” Rather, possession of a firearm “is a continuing offense,” so the jury only needs to find “unanimously that the defendant possessed the firearm at any point” during period of the alleged possession.  United States v. Estevez, No. 17-4159-cr, 2020 WL 3022983 (June 5, 2020).

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In Estevez, the sole count of the indictment alleged that Estevez possessed a firearm on two different dates: on February 21, 2016 and February 26, 2016. The charge was based on two separate shooting incidents, on those days. But a puzzling aspect of the Opinion is that it makes no reference to last years’ Supreme … Read more

The Second Circuit vacates and remands for resentencing because of the erroneous application of the Sentencing Guidelines enhancements for possessing a “dangerous weapon” (§ 2B3.1, cmt. n.2) and “physical restraint” (§ 2B3.1(b)(4)(B)) – – which increase the offense level for robbery offenses. United States v. Taylor, No. 18-1710,  __F.3d__, 2020 WL 2745536  (May 27,  2020). 

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In United States v. Taylor, the Circuit interprets two provisions of the Sentencing Guidelines that increase the offense level for robbery. It concludes that the sparse facts “set forth in the Presentence Report (PSR), upon which the district court relied at sentencing, are insufficient to support the application of either enhancement.” 2020 WL 2745536 at … Read more