Articles Posted in Criminal Law

The United States appealed the district court's order precluding the government from introducing at trial certain testimony by a co-defendant turned government witness on the basis of the common-interest rule of attorney-client privilege. The Second Circuit reversed the judgment of the district court, finding nothing in the circumstances in this case to support the application of the privilege. Here, the excluded statements were not made to, in the presence of, or within the hearing of an attorney for any of the common-interest parties; nor did the excluded statements seek the advice of, or communicate advice previously given by, an attorney for any of the common-interest parties; nor were the excluded statements made for the purpose of communicating with such an attorney. View "United States v. Krug" on Justia Law

After defendant was convicted of possessing digital images and videos of child pornography, he violated two conditions of his supervised release. In regard to the computer monitoring condition, the Second Circuit held that the condition, as construed for purposes of this appeal and under the court's deferential standard, was reasonable. In regard to the mental health treatment condition, the court held that it was reasonable for defendant to object to signing a treatment agreement that conflicted with his actual sentence, and he did not appear, based on the record, to have otherwise acted unreasonably with respect to participating in such treatment. Accordingly, the court affirmed in part, reversed in part, and remanded. View "United States v. Browder" on Justia Law

In 1997, defendant was convicted in the present case of a drug conspiracy (Barinas I). In 2016, defendant was extradited to the United States and convicted on new narcotics trafficking charges (Barinas II). The district court found that defendant had violated his supervised release by failing to report to Probation, leaving the district in which he was to be supervised without permission, and committing the crime of which he was convicted in Barinas II. The Second Circuit affirmed the district court's judgment and held that defendant lacked prudential standing to raise a rule-of-specialty challenge and that his claim that his supervised-release term ended prior to his Barinas II crime lacked merit because that term was tolled while he was a fugitive. View "United States v. Barinas" on Justia Law

The Second Circuit certified to the Court of Appeals of the State of New York the following question: Whether an entity engaged in the “bail business,” as defined in NYIL 6801(a)(1), may retain its “premium or compensation,” as described in NYIL 6804(a), where a bond posted pursuant to NYCPL 520.20 is denied at a bail-sufficiency hearing conducted pursuant to NYCPL 520.30, and the criminal defendant that is the subject of the bond is never admitted to bail. The Court of Appeals answered in the negative and its conclusion was determinative of this appeal. Accordingly, the court reversed and remanded. View "Gevorkyan v. Judelson" on Justia Law

The Second Circuit affirmed the district court's denial of a 28 U.S.C. 2255 petition. Petitioner argued that trial counsel failed to provide constitutionally effective assistance when they conceded before trial that child sexual abuse charges were timely under the applicable statute of limitations. In this case, trial counsel submitted a sworn affidavit in which they justified the decision to forgo a statute of limitations defense. Counsel considered the defense tenuous and believed it would clutter the motion to dismiss and distract from the motion's other strong points. The court held that the decision was reasonable under the circumstances of this case. The court affirmed the balance of the order in a summary order filed contemporaneously with this opinion. View "Weingarten v. United States" on Justia Law

The Second Circuit affirmed the denial of defendant's motion to suppress physical evidence. Defendant argued that he was seized when a police officer in a squad car, who had been alerted to a man lurking with a gun, shined a spotlight on defendant and asked questions to which he responded. The court held that its precedent in United States v. Baldwin, 496 F.3d 215, 219 (2d Cir. 2007), was controlling. In this case, defendant never submitted to police authority and therefore he was never seized. View "United States v. Huertas" on Justia Law

The Fifth Amendment's prohibition on the use of compelled testimony in American criminal proceedings applies even when a foreign sovereign has compelled the testimony.  When the government makes use of a witness who had substantial exposure to a defendant's compelled testimony, it is required under Kastigar v. United States, 406 U.S. 441 (1972), to prove, at a minimum, that the witness's review of the compelled testimony did not shape, alter, or affect the evidence used by the government.  A bare, generalized denial of taint from a witness who has materially altered his or her testimony after being substantially exposed to a defendant’s compelled testimony is insufficient as a matter of law to sustain the prosecution’s burden of proof. In this case involving the London Interbank Offered Rate (LIBOR), defendants were convicted of wire fraud and conspiracy to commit wire fraud and bank fraud. The Second Circuit held that defendants' compelled testimony was "used" against them, and this impermissible use before the petit and grand juries was not harmless beyond a reasonable doubt.  Accordingly, the court reversed the judgments of conviction and dismissed the indictment. View "United States v. Allen" on Justia Law

Plaintiff filed suit after the county refused to return her longarms that had been seized in connection with a New York Family Court temporary order of protection issued against her, even though the order was no longer in effect. The Second Circuit held that, because the litigation had not terminated on the merits, the district court's order was not final, and thus not appealable under 28 U.S.C. 1291. However, under 28 U.S.C. 1292, the the court had jurisdiction to review the district court's grant of injunctive relief. The court held, consistent with the district court's decision in the instant case, and the decision in Razzano v. Cty. of Nassau, 765 F. Supp. 2d 176, 180 (E.D.N.Y. 2011), that persons in plaintiff's situation were entitled to a prompt post-deprivation hearing under the four conditions set forth by the district court in this case and in Razzano. Accordingly, the court affirmed the order insofar as it granted plaintiff an injunction and directed the County to hold a post-deprivation hearing. The court dismissed in all other respects. View "Panzella v. Sposato" on Justia Law

The Second Circuit denied a petition for leave to file a successive motion under 28 U.S.C. 2255 to vacate petitioner's sentence on the ground that the enhanced punishment imposed because of his prior state convictions was unconstitutional in light of Mathis v. United States, 136 S. Ct. 2243 (2016). The court held that Mathis did not announce a new rule of constitutional law and thus petitioner's proposed successive motion was impermissible. View "Washington v. United States" on Justia Law

The Second Circuit vacated and remanded defendant's conviction for all counts related to the abuse of his public position by engaging in two quid pro quo schemes in which he performed official acts in exchange for bribes and kickbacks. Defendant, the former Speaker of the New York State Assembly, then laundered the proceeds of his schemes into private investment vehicles. Although the court rejected defendant's sufficiency challenges, the court held that the district court's instructions on honest services fraud and extortion did not comport with McDonnell v. United States, 136 S. Ct. 2355 (2016), and were therefore in error. McDonnell clarified the definition of an "official act" in honest services fraud and extortion charges. The court further held that this error was not harmless because it was not clear beyond a reasonable doubt that a rational jury would have reached the same conclusion if properly instructed, as was required by law for the verdict to stand. View "United States v. Silver" on Justia Law