Articles Posted in Criminal Law

When a stay has been issued, an immigrant is not held pursuant to 8 U.S.C. 1231(a) because he is not in the "removal period" contemplated by statute until his appeal is resolved by this court. The Second Circuit reversed the district court's determination that petitioner was detained under 8 U.S.C. 1231, holding that petitioner was detained under 8 U.S.C. 1226(c). In light of the uncertainty surrounding this area of detention after the Supreme Court's decision in Jennings v. Rodriguez, 138 S. Ct. 830 (2018), the court remanded to the district court for reconsideration of the habeas petition under the correct statutory provision. View "Hechavarria v. Sessions" on Justia Law

The First Amendment protects a prisoner's right not to serve as a prison informant or provide false information to prison officials. The Second Circuit affirmed the district court's grant of summary judgment to defendants in a First Amendment retaliation claim. Plaintiff alleged that his constitutional rights were violated when he was put on a restricted status known as Involuntary Protective Custody for over six months because he refused the demands of prison guards to act as a snitch, or to falsify his account of a minor incident in the commissary. The court held that defendants were entitled to qualified immunity because the court had not previously recognized the speech and speech‐related activity as protected by the First Amendment. View "Burns v. Martuscello" on Justia Law

A summary order was issued on August 3, 2016 addressing and rejecting most of defendant's claims on appeal. This opinion considered one of defendant's challenges to his conviction regarding Hobbs Act robbery. The Second Circuit found that Hobbs Act robbery was categorically a crime of violence under the force clause of 18 U.S.C. 924(c)(3) and therefore affirmed defendant's conviction of violating 18 U.S.C. 924(j)(1), for a firearm‐related murder committed in the course of a crime of violence pursuant to section 924(c). View "United States v. Hill" on Justia Law

The Second Circuit denied a petition for review of an order of removal based on petitioner's conviction for possession of a controlled substance in the fifth degree in violation of New York Penal Law. The court rejected petitioner's argument that 8 U.S.C. 1101(a)(43)(T) did not set forth the elements of the generic federal crime for failure to appear, because the agency's interpretation, which was contrary to petitioner's interpretation, was entitled to deference; petitioner's related mens rea argument was also without merit; a conviction for failure to appear was an aggravated felony; and thus the BIA did not err in finding that petitioner was ineligible for cancellation of removal. View "Perez Henriquez v. Sessions" on Justia Law

The Second Circuit denied a petition for review of an order of removal based on petitioner's conviction for possession of a controlled substance in the fifth degree in violation of New York Penal Law. The court rejected petitioner's argument that 8 U.S.C. 1101(a)(43)(T) did not set forth the elements of the generic federal crime for failure to appear, because the agency's interpretation, which was contrary to petitioner's interpretation, was entitled to deference; petitioner's related mens rea argument was also without merit; a conviction for failure to appear was an aggravated felony; and thus the BIA did not err in finding that petitioner was ineligible for cancellation of removal. View "Perez Henriquez v. Sessions" on Justia Law

The Second Circuit vacated defendant's conviction for securities fraud. The court held that although defendant's misstatements could be found by a jury to be material, the district court materially erred in admitting evidence that the counter-party representative in the sole transaction underlying the count of conviction mistakenly believed that defendant was his agent. Therefore, the evidence was prejudicial and the court could not conclude with fair assurance that the jury would have convicted defendant absent such evidence. Accordingly, the court remanded the judgment of conviction, ordering defendant be released on appropriate bond pending further proceedings. View "United States v. Litvak" on Justia Law

The Second Circuit vacated defendant's conviction for securities fraud. The court held that although defendant's misstatements could be found by a jury to be material, the district court materially erred in admitting evidence that the counter-party representative in the sole transaction underlying the count of conviction mistakenly believed that defendant was his agent. Therefore, the evidence was prejudicial and the court could not conclude with fair assurance that the jury would have convicted defendant absent such evidence. Accordingly, the court remanded the judgment of conviction, ordering defendant be released on appropriate bond pending further proceedings. View "United States v. Litvak" on Justia Law

The Second Circuit vacated in part the district court's revocation of supervised release and sentence of one year in prison followed by a term of supervised release. In this case, defendant violated the terms of his supervised release by repeatedly testing positive for drugs and failing to report for scheduled drug testing. The court was not persuaded that the imposition of a life term of supervised release -- upon defendant's first revocation -- was reasonable in light of the justifications given by the district court. Given the non‐violent nature of defendant's violations and the difficulty faced by so many offenders in controlling addiction, the court held that his behavior was not so extreme or unusual as to justify a life term of supervised release. Accordingly, the court remanded for further proceedings. View "United States v. Brooks" on Justia Law

The Second Circuit vacated defendant's conviction for being a felon in possession of a firearm. In this case, the district court denied defendant's motion to suppress two firearms recovered from his property in a warrantless search without probable cause, holding that there was no Fourth Amendment violation because the firearms were found outside the curtilage of defendant's home. The court reversed the denial of the suppression motion. The court weighed the Dunn factors as well as the factors applied to the property in Florida v. Jardines, 569 U.S. 1, 7 (2013), and held that the portion of the driveway in front of defendant's shed formed part of the curtilage, and the search of the area ran afoul of the Fourth Amendment. Accordingly, the court remanded for further proceedings. View "United States v. Alexander" on Justia Law

The Second Circuit affirmed defendant's conviction for one count of conspiracy to violate and one count of violating, attempting to violate, and aiding and abetting the violation of the Arms Export Control Act (AECA), 22 U.S.C. 2778(b)(2), (c). The court held that the AECA did not unconstitutionally delegate legislative authority to the executive; the district court did not err in instructing the jury on the conduct required to find "willfulness" and "conscious avoidance"; the district court did not violate defendant's rights under the Sixth Amendment and the Court Interpreters Act (CIA), 28 U.S.C. 1827–28, to waive the assistance of an interpreter; and the district court did not abuse its discretion in requiring that defendant be provided the assistance of a court‐appointed Mandarin interpreter throughout trial. View "United States v. Henry" on Justia Law