Articles Posted in Criminal Law

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The Second Circuit affirmed defendant's convictions for prostituting two minors, in violation of 18 U.S.C. 1591, and for employing a minor in the creation of a sexually explicit video, in violation of 18 U.S.C. 2251. The court held that section 1591 was not unconstitutionally vague and rejected defendant's overbreadth challenge; the statutory language in section 1591 requires that the defendant know or recklessly disregard the fact that a minor was younger than 18 years old; and it did not mandate, to support the increased punishment in subsection (b), that the government prove that a defendant knew or recklessly disregarded that a minor was under the age of fourteen.  The court rejected defendant's venue challenge to his conviction under section 2251 where the jury was entitled to find that venue for prosecution lay in the Eastern District of New York. View "United States v. Thompson" on Justia Law

Posted in: Criminal Law

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The Second Circuit affirmed the order of the district court to the extent it denied petitioner's motion to vacate his sentence under 28 U.S.C. 2255. The court held that petitioner's claim did not rely on the rule announced in Johnson v. United States, 135 S. Ct. 2551 (2015), that New York third‐degree robbery was a crime of violence under the Armed Career Criminal Act (ACCA), because his sentence was clearly enhanced pursuant to the force clause of the ACCA. View "Massey v. United States" on Justia Law

Posted in: Criminal Law

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The Second Circuit affirmed defendant's conviction of possession of ammunition after having been dishonorably discharged from the military, in violation of 18 U.S.C. 922(g)(6). The court held that defendant's conviction under section 922(g)(6) did not violate the Second Amendment because, even assuming without deciding that plaintiff can claim any Second Amendment protections, those protections did not preclude his conviction. The court held that those who, like defendant, have been found guilty of felony‐equivalent conduct by a military tribunal are not among those "law‐abiding and responsible" persons whose interests in possessing firearms are at the Amendment's core; although defendant's interests were outside the core protections of the Second Amendment, it was burdened substantially and intermediate scrutiny was applicable in his case; and section 922(g)(6) was substantially related to the government's interest of maintaining public safety. The court noted that there was no reason to think that defendant was more likely to handle a gun responsibly just because his conviction for dealing drugs and stolen military equipment (including firearms) occurred in a military tribunal rather than in state or federal court. View "United States v. Jimenez" on Justia Law

Posted in: Criminal Law

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The Second Circuit affirmed defendant's conviction and sentence for assault with a dangerous weapon and discharge of a firearm during a crime of violence. The court rejected defendant's contention that the district court gave erroneous instructions to the jury on his defense of duress, because the instruction as given accurately reflected the law of the circuit; the evidence presented through the testimony of former MS-13 members as to the acts of violence in which defendant engaged as he was repeatedly seeking membership in MS-13's BLS clique, and which culminated in his leadership of BLS, dispelled any notion that defendant was involved in the shooting through no fault of his own; and, even if the instructions were erroneous, the error would afford no ground for relief. The court rejected defendant's contention that the district court improperly found that defendant had committed attempted murder where the court declined defendant's invitation to rule that the district court's normal authority to make findings relevant to sentencing vanished because of a speculative possibility. View "United States v. Hernandez" on Justia Law

Posted in: Criminal Law

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The Second Circuit affirmed defendant's conviction of misdemeanor computer intrusion in violation of 18 U.S.C. 1030(a)(2)(C), a provision of the Computer Fraud and Abuse Act of 1986 (CFAA). The court held that defendant's challenge to the constitutionality of section 1030(a)(2)(C) failed because the statute was not unconstitutionally vague and, even if the statute's application may be unclear in some marginal cases, defendant's conduct fell squarely and unambiguously within the core prohibition of the statute. The court also held that the district court did not err by denying defendant's motion to suppress evidence obtained pursuant to search warrants issued under the Stored Communications Act and obtained during searches of defendant's home in Italy. Finally, the court rejected defendant's challenge to the authentication of screenshots of websites registered to defendant for use in the click fraud scheme, which were captured and stored by the Internet Archive, and maintained as business records of that entity. View "United States v. Gasperini" on Justia Law

Posted in: Criminal Law

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In 1999, Villanueva was indicted for unlawful possession of a firearm by a convicted felon, 18 U.S.C. 922(g)(1). The indictment alleged two prior convictions for narcotics violations, a third for first-degree assault, Conn. Gen. Stat. 53a‐59(a), and a fourth for assault on an officer. After a jury found Villanueva guilty, a presentence report recommended sentencing under the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e) minimum 15-year sentence provision. The report reflected that the first-degree assault conviction resulted from Villanueva’s firing a gun three or four times and hitting his victim in the shoulder and calculated a Guidelines range of 262‐327 months. The court concluded that each of the narcotics convictions was a “serious drug offense” and at least one of the assault convictions was a “violent felony” under ACCA without specifying whether the elements clause or the residual clause of ACCA applied. In 2015, the Supreme Court ruled that the “residual clause” of the ACCA was unconstitutionally vague. In 2016, the district court vacated Villanueva’s sentence and sentenced him to time served. The Second Circuit disagreed and remanded, finding that the Connecticut statute, analyzed under the so‐called “modified categorical approach,” has as an element, the use of “physical force” as federal law uses in defining “violent felony.” View "Villanueva v. United States" on Justia Law

Posted in: Criminal Law

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New York authorities arrested Olmeda for attempted murder, attempted assault on a police officer with a deadly weapon, attempted assault, and criminal possession of a weapon. Olmeda had two firearms in his possession. Later searches of his home and storage locker revealed more than 20 additional firearms. While state proceedings were ongoing, a federal grand jury indicted Olmeda as a felon in possession of a firearm, 18 U.S.C. 922(g)(1), and for possession of unregistered firearms, 26 U.S.C. 5845, 5861(d). Olmeda pleaded guilty to the six federal counts. The government argued that Olmeda should receive a four‐level enhancement under U.S.S.G. 2K2.1(b)(6) because he used one of the firearms in connection with another felony offense—the altercation with the New York police officers (relevant conduct enhancement). Olmeda asked that his federal sentence be concurrent with any term of imprisonment for the pending state charges, citing U.S.S.G. 5G1.3. The court declined to order a concurrent sentence, then held a “Fatico hearing” and concluded that the government had proven the state offenses for the relevant conduct enhancement by a preponderance of the evidence. The district court applied that increase and calculated a Guidelines range of 121-151 months, and sentenced him to 151 months. Olmeda had not yet been convicted in state court. The Second Circuit vacated. Section 5G1.3(c) applies where state charges for relevant conduct are pending at the time of the federal sentencing. View "United States v. Olmeda" on Justia Law

Posted in: Criminal Law

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New York law provides that a court may order that a person who has information material to a criminal proceeding be detained to secure her attendance at the proceeding, N.Y. Crim. Proc. Law 620.10–50. In 2008, McKinnies, a New York Police Officer, was under investigation for potential insurance fraud. McKinnies’ car, which she had reported stolen, had turned up in a “chop shop” covertly run by the NYPD. McKinnies stated her friend “Alexandra Griffin” was the last person to drive her car. But “Alexandra Griffin” stated that she had never been given the vehicle, did not have a driver’s license, and that her surname was Simon. Her real name is Dormoy, she is Simon's daughter. Simon was twice taken to the precinct and held for a total of 18 hours over two days. Simon sued under 42 U.S.C. 1983, claiming false arrest and imprisonment. Simon alleged that the warrant, on its face, directed officers to bring Simon to court at a fixed date and time for a hearing to determine whether she should be detained as a material witness. Simon was never presented to the court. The district court held that the defendants are entitled to qualified immunity and granted summary judgment in their favor. The Second Circuit vacated and remanded. With the facts taken in the light most favorable to Simon, the defendants violated Simon’s clearly established Fourth Amendment rights and are not entitled to qualified immunity. View "Simon v. City of New York" on Justia Law

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The Second Circuit affirmed defendant's conviction and sentence for conspiracy to possess with intent to distribute cocaine base, possession with intent to distribute various quantities of cocaine base and cocaine, possession of a firearm in furtherance of a narcotics trafficking crime, and unlawful possession of a firearm and ammunition by a convicted felon. The court rejected defendant's arguments and, in this opinion, held that the district court did not err in refusing to suppress evidence seized from a car parked in the common parking lot of a multi‐family building where the vehicle search was warrantless but supported by probable cause. Remaining arguments were resolved by a simultaneously issued summary order. View "United States v. Jones" on Justia Law

Posted in: Criminal Law

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On a second appeal following resentencing, the Second Circuit vacated defendant's 300 month sentence for production of child pornography and receipt of child pornography. The court held that the district court did not sufficiently address on remand deficiencies in the district court's analysis. The district court failed to comply with the mandate rule when it ordered no downward departure on either of the grounds specifically identified in the court's summary order as grounds for significant downward departures. The court remanded for resentencing and assigned the matter to a different judge where the district court noted on the record her continuing disagreement with the court and informed the court that "it would probably be better for judicial economy if another judge sentence for a third time." View "United States v. Sawyer" on Justia Law

Posted in: Criminal Law