Justia U.S. 2nd Circuit Court of Appeals Opinion Summaries

Petitioner challenged his conviction for brandishing a firearm during and in relation to a crime of violence or drug trafficking crime. Petitioner argued that his firearms conviction cannot survive United States v. Barrett. Petitioner argued that (1) his plea allocutions did not connect the robbery conspiracy to the “separate” drug conspiracy, such that the latter cannot serve as a predicate for the Section 924(c) conviction; and (2) his arguable allocution to substantive robbery (an uncharged offense) likewise cannot predicate the gun count.   The Second Circuit affirmed. The court explained that a petitioner may seek collateral relief to challenge the constitutional validity of a guilty plea where a subsequent substantive constitutional or statutory holding creates “a significant risk that a defendant stands convicted of an act that the law does not make criminal.” The court wrote that because the government has not argued otherwise, it assumes without deciding that Petitioner has not procedurally defaulted his claim. On the merits, the court applied the new substantive rule the Supreme Court announced in Davis and that the court applied in Barrett, recognizing that a Section 924(c) conviction based on an invalid predicate is error. The court reasoned that when Petitioner admitted to brandishing a firearm in furtherance of one, he necessarily admitted to brandishing it in furtherance of the other. Accordingly, Petitioner is not entitled to collateral relief based on the fact that the Hobbs Act robbery conspiracy is no longer a valid predicate for a Section 924(c) charge. View "Tavarez v. United States" on Justia Law

Around 1:00 a.m. on October 14, 2020, New York City Police Department (“NYPD”) officers drove by Defendant near a New York City Housing Authority (“NYCHA”) complex in the Bronx. Defendant was wearing a fanny pack across his chest and standing next to a double-parked car. According to the officers, Defendant was visibly nervous when he saw them, and one officer noticed that Defendant’s fanny pack appeared to contain a bulging object with a straight line on top—the same shape as a handgun. The officers stopped and frisked Defendant and found a loaded semiautomatic pistol in the fanny pack. Defendant was arrested and charged with a violation of 18 U.S.C. Sections 922(g)(1), 924(a)(2): possessing a firearm after having been convicted of a felony. He moved to suppress the firearm, and the district court denied the motion. Defendant appealed, arguing that the stop violated his Fourth Amendment rights because the officers lacked reasonable suspicion that he was engaged in criminal activity.The Second Circuit affirmed. The court explained that the totality of circumstances in this case—including the officer’s observations of the fanny pack (as informed by his experience recovering firearms from fanny packs), Defendant’s unusual manner of wearing the fanny pack, his nervous appearance, and the late hour in a high-crime neighborhood—established reasonable suspicion. View "United States v. Hagood" on Justia Law

Defendant, a California licensed attorney, challenged (1) the sufficiency of the evidence supporting his conviction for transmitting extortionate communications in interstate commerce to sportswear leader Nike, attempted Hobbs Act extortion of Nike, and honest-services wire fraud of the client whom Defendant was purportedly representing in negotiations with Nike. Defendant further challenged the trial court’s jury instruction as to honest-services fraud and the legality of a $259,800.50 restitution award to Nike.   The Second Circuit affirmed. The court explained that the trial evidence was sufficient to support Defendant’s conviction for the two charged extortion counts because a reasonable jury could find that Defendant’s threat to injure Nike’s reputation and financial position was wrongful in that the multi-million-dollar demand supported by the threat bore no nexus to any claim of right. Further, the court held that the trial evidence was sufficient to support Defendant’s conviction for honest-services fraud because a reasonable jury could find that Defendant solicited a bribe from Nike in the form of a quid pro quo whereby Nike would pay Defendant many millions of dollars in return for which Defendant would violate his fiduciary duty as an attorney. The court further explained that the district court did not exceed its authority under the MVRA by awarding restitution more than 90 days after initial sentencing, and Defendant has shown no prejudice from the delayed award. Finally, the court wrote that the MVRA applies in this case where Nike sustained a pecuniary loss directly attributable to those crimes as a result of incurring fees for its attorneys to attend the meeting demanded by Defendant at which he first communicated his extortionate threat. View "United States v. Avenatti" on Justia Law

Defendant challenged the district court’s application of a two-level enhancement under Section 2D1.1(b)(12) of the United States Sentencing Guidelines, which applies when a defendant has “maintained a premises for the purpose of manufacturing or distributing a controlled substance.” The principal question is whether the enhancement applies to defendants who use their residence to manufacture or distribute a controlled substance.   The Second Circuit affirmed. The court explained that here, Defendant maintained an apartment where he had at one point lived for the purpose of distributing controlled substances. The court reasoned that the commentary in the Guidelines manual confirms that the district court properly applied the drug-distribution premises enhancement using a “totality of the circumstances” test, which is appropriate given the fact-intensive nature of the inquiry. Further, Defendant challenged the district court’s failure to consider a downward departure from the Guidelines sentence in order to give effect to the parties’ plea bargain. He claimed that the court misunderstood its authority to do so under United States v. Fernandez. However, the court wrote that a district court’s silence concerning its refusal to depart downward generally does not support an inference that the district court misapprehended its scope of authority. The court, therefore, rejected Defendant’s argument that his sentence was procedurally unreasonable on this ground. View "United States v. Vinales" on Justia Law

Defendants appealed from their judgments of conviction. Following a five-week jury trial, Defendants-Appellants were convicted on counts of conspiracy to tamper with witnesses and obstruct an official proceeding, substantive witness tampering and obstruction of an official proceeding, obstruction of justice, and being accessories after the fact to the deprivation of the civil rights of a victim. The district court sentenced Defendants, principally, to five years’ imprisonment each. On appeal, Defendants raised challenges to the district court’s admission of certain testimony at trial—in particular, testimony about subordinates’ fear of retaliation and testimony about bad acts that formed the basis for that fear of retaliation. Defendants also challenge the district court’s denial of their application to admit the government’s bill of particulars, and Defendant challenges the district court’s denial of his motion for an evidentiary hearing and new trial.   The Second Circuit affirmed. The court explained that the government specifically mentioned the demotion and the retirement party only once each, as examples of retaliation by the co-conspirator against an enemy. Discussion of the tasks performed by the detectives was similarly brief. These remarks by the government could have been made based only on the properly admitted testimony from other high-ranking members of the SCPD and, accordingly, could not have misled the jury. As a result, the court concluded that although the admission of cumulative evidence regarding the demotion and retirement party, and the tasks performed for the co-conspirator, was in error, it was ultimately harmless. View "United States v. McPartland, Spota" on Justia Law

Defendant was convicted of, among other things, kidnapping and kidnapping conspiracy in violation of 18 U.S.C. Section 1201. Defendant argued on appeal that the victim’s detention was too brief to constitute kidnapping under section 1201 because Defendant lacked the intent required to violate section 1201 and because the district court violated his constitutional rights by preventing him from cross-examining the victim about any connections that the victim’s family may have had to the Federal Bureau of Investigation.   The Second Circuit affirmed. The court agreed with Defendant that not all detentions satisfy section 1201(a)’s second element. However, the court explained that Defendant’s assertions to the contrary notwithstanding, Rodriguez does not compel the conclusion that the victim’s detention was not a kidnapping. The court concluded that Defendant’s conduct satisfied the federal kidnapping statute’s second element. While the victim’s 30-minute detention may be characterized as relatively brief, it was nonetheless “appreciable.” As noted, Defendant forced the victim into the vehicle under threat of violence, physically restrained the victim before walking him to a more secluded location, threatened the victim with a knife, beat the victim repeatedly, and included the victim’s family in their threats. The perilous nature of these conditions weighs heavily in favor of concluding that the victim’s detention was appreciable. View "United States v. Krivoi" on Justia Law

Plaintiff-Appellant Douglas Horn appealed the district court’s order of the granting summary judgment to Defendants on his claim under the Racketeer Influenced and Corrupt Organizations Act (“RICO”). On appeal, Appellant argues that the district court erroneously held that he lacks RICO 11 standing to sue for his lost earnings because those losses flowed from, or were derivative of, an antecedent personal injury.   The Second Circuit agreed and vacated the order granting summary judgment to Appellees on Appellant’s civil RICO claim and remanded to the district court. The court explained that RICO’s civil-action provision, 18 U.S.C. Section 1964(c), authorizes a plaintiff to sue for injuries to 14 “business or property.” While that language implies that a plaintiff cannot sue for personal injuries, that negative implication does not bar a plaintiff from suing for injuries to business or property simply because a personal injury was antecedent to those injuries. View "Horn v. Medical Marijuana, Inc." on Justia Law

Petitioner appealed the denial of his habeas petition to vacate his 2006 guilty plea, conviction, and sentence. Defendant asserted that he received ineffective assistance of counsel because his lawyer did not warn him of the risks of denaturalization and possible subsequent deportation arising from his guilty plea.   The Second Circuit affirmed. The court explained that the Sixth Amendment guarantees criminal defendants the effective assistance of counsel during plea negotiations. Effective assistance includes warning defendants of the “direct” consequences of pleading guilty, such as the offense’s maximum prison term and the likely sentence as set forth in a plea agreement. However, the court explained that it has long held that an attorney need not warn of every possible “collateral consequence of conviction. And such collateral consequences are “categorically removed from the scope of the Sixth Amendment.” Thus, a defendant can only establish an ineffective assistance claim as to a collateral consequence if his attorney affirmatively misadvises him. Failing to warn of the collateral risk alone is not enough. The court explained that the instant appeal is resolved by the straightforward application of this direct/collateral framework. Accordingly, the court held that the distinction remains valid, that it applies to civil denaturalization, and that such denaturalization is a collateral consequence of the conviction, and so is not covered by the Sixth Amendment’s right to effective assistance of counsel. View "Farhane v. United States" on Justia Law

Defendant appealed the district court’s judgment revoking his original, three-year term of supervised release and sentencing him to three months imprisonment followed by a new, one-year term of supervised release for violating certain conditions of his supervised release. Defendant contends that the district court erred in finding that he violated a condition of his supervised release by possessing marijuana on January 27, 2021, in violation of New York Penal Law Section 221.05. First, Defendant argued that the offense defined by Section 221.05 was simply a state “violation,” not a state “crime,” and therefore, his offense did not violate the mandatory condition of supervised release that he “not commit another federal, state or local crime.” Second, Defendant argued that even if the offense, as defined by Section 221.05, constituted a “crime” for purposes of a violation of supervised release, New York’s March 31, 2021 repeal of the statute operated retroactively, such that his pre-repeal conduct in contravention of it cannot serve as the basis for a violation of supervised release.   The Second Circuit affirmed. The court agreed with the district court’s conclusion that Defendant violated a condition of his supervised release based on his possession of marijuana. The court explained that irrespective of New York’s classification of the offense, Defendant’s underlying conduct constituted a “crime” under federal law. Because this holding disposes of Defendant’s appeal in its entirety, the court did not reach Defendant’s retroactivity argument. View "United States v. Francis" on Justia Law

Police officers seized just over $8,000 in a search of Appellant’s home carried out as part of a drug trafficking investigation into her then-boyfriend, K.B. The local police turned over the funds to the U.S. Drug Enforcement Administration, which initiated an administrative forfeiture procedure to claim the funds as proceeds from drug sales. Acting pro se, Appellant filed a claim to the assets, forcing the government to terminate its administrative seizure and open a judicial forfeiture proceeding in district court.  She failed to timely oppose the ensuing judicial proceeding, and the clerk of court entered default against the funds. Appellant, still acting pro se, then sent several letters to the district court and the U.S. Attorney’s Office seeking leave to file a belated claim to the seized assets. The district court held that Appellant had not shown excusable neglect, denied her an extension of time to file a claim, and entered final default judgment against the seized assets.
The Second Circuit vacated the grant of the motion to strike and the entry of default judgment and remanded for further proceedings. The court held that the district court erred in granting default judgment to the government. Appellant’s letters are properly viewed as seeking both to lift the entry of default and to be granted leave to file an untimely claim to the assets. So understood, Appellant’s motion should have been assessed under the more permissive good cause standard, as is any other motion to lift entry of default in a civil suit. View "U.S. v. Starling" on Justia Law