Federal Defenders of New York Second Circuit Blog

Sarah Baumgartel

No GAAP violation, no expert, no problem

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Are accounting standards and securities laws as complex as the tax code? Not according to the Second Circuit. In United States v. Petit, Taylor, Nos. 21-543-cr, 21-559-cr (2d Cir. Aug. 22, 2022) (summary order), the Second Circuit upheld the securities fraud convictions of two former public company executives charged with using “accounting tricks to artificially … Read more

District court can’t delegate inpatient treatment decision, but Hobbs Act restitution order stands.

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In a March 14, 2022 summary order, the Second Circuit reiterated the limits of a district court’s authority to delegate decisions about supervised release to the Probation Department. In United States v. Ely, No. 17-3081-cr, the court imposed a special condition of release requiring the defendant to complete “outpatient and/or inpatient drug treatment.” This wording … Read more

“We can do that. We don’t even have to have a reason.”

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Today’s Second Circuit summary order in United States v. Foskey, No. 21-149-cr, brings to mind a Caddyshack line that I think of often (quoted above). In Foskey, the Circuit upheld the district court’s denial of a motion for a reduced sentence pursuant to 18 U.S.C. § 3582(c)(1)(A). Before the Circuit, the defendant argued that the district … Read more

But is it one conspiracy? And is it securities fraud?

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The answer to those questions is pretty much always “yes.” In United States v. Khalupsky, Nos. 19-197-cr, 19-780-cr (2d Cir. July 19, 2021), the Second Circuit affirmed the trial convictions of two defendants, rejecting various legal challenges. According to the circuit, the evidence at trial established that the defendants participated in a multi-year scheme to … 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

Challenging § 924(c) convictions based on multiple predicates after Davis.

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Since the Supreme Court decided United States v. Davis, 139 S. Ct. 2319 (2019), lower courts have grappled with pre-Davis § 924(c) convictions predicated on both a valid crime of violence and a predicate offense that no longer categorically qualifies (for example, a § 924(c) conviction predicated on both a substantive Hobbs Act robbery and … Read more

Questioning about phone number violated Miranda rights.

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By summary order dated June 21, 2021, the Second Circuit reaffirmed limitations on law enforcement’s ability to elicit so-called pedigree information after an arrest. In United States v. Durand, No. 20-1992, the defendant requested a lawyer and did not waive his Miranda rights following arrest. Nonetheless, officers asked him about his phone number, purportedly as … Read more