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

The Second Circuit denied petitions for review of the BIA's decisions affirming the IJ's order of removal and denial of Petitioner Graham's motion to reopen. The court concluded that petitioners' narcotics convictions under Connecticut General Statute 21a-277(a) are controlled substance or aggravated felony drug trafficking offenses under the Immigration and Nationality Act. The court also concluded that its jurisdictional holding in Banegas Gomez v. Barr, 922 F.3d 101 (2d Cir. 2019), that a notice to appear that omits the hearing date and time is nonetheless sufficient to vest jurisdiction in the immigration courts, survives the Supreme Court's ruling in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). View "Chery v. Garland" on Justia Law

The Second Circuit affirmed defendants' convictions for multiple drug- and gun-related counts, concluding that the evidence was sufficient to support their convictions. The court rejected defendants' claims of evidentiary errors and Rehaif error.However, in failing to account for the gaps in the government's evidentiary presentation for acquitted conduct, the court concluded that the district court erred in cross-attributing the drugs found in the upper apartment when it sentenced Defendant Willis. Furthermore, the error requires a remand for resentencing and reconsideration of whether the government met its burden of proving jointly undertaken criminal activity between Willis and Pierce by a preponderance of the evidence, and if so, the scope of that activity. The court remanded Willis's sentence to the district court to expressly rule whether the sentence will run concurrently with his state sentence. View "United States v. Willis" on Justia Law

The Second Circuit affirmed defendant's conviction and sentence for knowingly and intentionally possessing with intent to distribute controlled substances in violation of 21 U.S.C. 841(a)(1). The court held that the district court did not err in denying defendant's motion to suppress where the warrantless dog sniff was not a search within the meaning of the Fourth Amendment. The court also held that there was sufficient evidence to establish defendant's knowing possession of the cocaine, and the district court was not required to hold an evidentiary hearing to address his claim that police investigators knowingly misled a New York court in an application for a search warrant. Furthermore, the district court did not err in calculating defendant's Guidelines Sentencing Range. The court considered defendant's remaining arguments and found them to be without merit. View "United States v. McKenzie" on Justia Law

Cabrera engaged in four drug transactions with his barber. Cabrera’s sole defense was entrapment. Cabrera and his barber gave opposite accounts of who first proposed partnering in the drug trade. The barber was receiving deferrals of removal while serving as a paid DEA informant. Special Agent Son, who had surveilled Cabrera at two deals, also testified, stating that Cabrera, unlike the “average drug dealer,” appeared to be “experienced” because he had employed counter-surveillance driving techniques (which consisted of really bad driving).The Second Circuit vacated Cabrera’s convictions and remanded for a new trial. Because of the differing versions of who initiated the drug transactions, it was crucial that the charge accurately state Cabrera’s burden: the slight burden of adducing “some credible” evidence that the government initiated the crime. The charge overstated that burden, effectively requiring that the jury weigh the evidence and definitively accept Cabrera’s account as a precondition to considering predisposition. Compounding the prejudice to Cabrera’s defense, the special agent’s testimony that Cabrera was an “experienced” drug dealer was inadmissible as lay opinion and undercut Cabrera’s account of how the transactions with his barber originated, as well as his lack of predisposition to deal. View "United States v. Cabrera" on Justia Law

Percoco, a longtime friend and top aide to former Governor Andrew Cuomo, accepted payment in exchange for promising to use his position to perform official actions. For one scheme, Percoco promised to further the interests of an energy company, CPV; for another, Percoco agreed with Aiello to advance the interests of Aiello’s real estate development company. Aiello was convicted of conspiracy to commit honest services wire fraud, 18 U.S.C. 1349. Percoco was convicted of both conspiracy to commit honest-services wire fraud and solicitation of bribes or gratuities, 18 U.S.C. 666(a)(1)(B). The court had instructed the jury that the quid-pro-quo element of the offenses would be satisfied if Percoco wrongfully “obtained . . . property . . . in exchange [for] official acts as the opportunities arose.”The Second Circuit affirmed. Although the as-opportunities-arise instruction fell short of a recently clarified standard, which requires that the honest-services fraud involve a commitment to take official action on a particular matter or question, that error was harmless. A person who is not technically employed by the government may nevertheless owe a fiduciary duty to the public if he dominates and controls governmental business, and is actually relied on by people in the government because of some special relationship. View "United States v. Percoco" on Justia Law

In 2012, then-Governor Cuomo launched the "Buffalo Billion” initiative to develop the greater Buffalo area through the investment of $1 billion in taxpayer funds. A big-rigging scheme ensued with respect to state-funded projects. Four defendants were convicted of various counts of conspiracy to engage in wire fraud, 18 U.S.C. 1349, wire fraud, 18 U.S.C. 1343, and making false statements to federal officers, 18 U.S.C. 1001(a)(2).The Second Circuit affirmed, rejecting challenges to the sufficiency of the evidence with respect to the charged wire fraud conspiracies, the instructions to the jury regarding the right-to-control theory of wire fraud and the good faith defense, the preclusion of evidence regarding the success of the projects awarded to defendants through the rigged bidding system and the admission of evidence from competitors regarding the range of fees typically charged by other companies in the market, and the district court's denial of a motion to dismiss Gerardi's false statement charge for alleged prosecutorial misconduct. Evidence of actual economic harm is not necessary for conviction in "right-to-control" cases, which require "a showing that the defendant, through the withholding or inaccurate reporting of information that could impact on economic decisions, deprived some person or entity of potentially valuable economic information." View "United States v. Percoco et al." on Justia Law

In 2006, petitioner was convicted under New York's child endangerment statute, N.Y. Penal Law 260.10(1). In 2017, the United States initiated removal proceedings against him, citing as a ground of removal defendant's conviction of a crime of child abuse, child neglect, or child abandonment pursuant to 8 U.S.C. 1227(a)(2)(E)(i). In 2010, the BIA held that this provision included convictions under child-endangerment statutes for which "actual harm" is not an element of the crime.The Second Circuit held that the holding in Matter of Soram, 25 I. & N. Dec. 378, 381 (B.I.A. 2010), applies retroactively, rendering petitioner removable. The court also held that it lacked jurisdiction to review the denial of petitioner's cancellation of removal because the agency retains discretion to weigh the probative value of uncorroborated arrest reports. Accordingly, the court denied in part and dismissed in part. View "Marquez v. Garland" on Justia Law

Defendant pleaded guilty to conspiracy to commit securities fraud in violation of 18 U.S.C. 371. Defendant, as a broker-dealer in the over-the-counter securities market, executed fraudulent trades for a co-defendant client with the effect of artificially inflating the share price of a sham company, Cubed. While defendant was involved in that activity, his co-defendants arranged the sale of Cubed shares outside the public market in a private placement. The district court concluded that defendant was liable under the Mandatory Victims Restitution Act of 1996 for restitution, both to purchasers of Cubed shares in the public market (in the amount of $479,000) and to purchasers in the private placement (in the amount of $1.85 million).The Second Circuit reversed and remanded, agreeing with defendant that the Government did not show that the private placement losses are attributable to his offense of conviction, as the MVRA requires. The court explained that the MVRA authorizes restitution only for losses "directly and proximately" caused by a covered "offense" of conviction, 18 U.S.C. 3663A(a)(2), (c). This proximate cause element requires that the Government prove, by a preponderance of the evidence, that the losses for which restitution compensates were foreseeable to the defendant in the course of committing the offense of conviction. In this case, because the Government has not adduced sufficient evidence that the private placement losses were foreseeable to defendant during his participation in the conspiracy to manipulate the public share price of Cubed, the MVRA does not authorize the $1.85 million in restitution for these losses. View "United States v. Goodrich" on Justia Law

Defendant appealed his conviction and sentence on four counts of using a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. 924(c)(1)(A) and 2. After the Second Circuit vacated defendant's original 2011 sentence, the district court resentenced defendant to a mandatory minimum term of 115 years' imprisonment. On appeal, defendant argues that his section 924(c) convictions, predicated on his commission of Hobbs Act robbery and attempted Hobbs Act robbery (as well as aiding and abetting the same), are invalid in light of the Supreme Court's decision in United States v. Davis, 139 S. Ct. 2319 (2019), because the predicate offenses do not constitute crimes of violence; his revised 115-year sentence violates the Eighth Amendment's prohibition against cruel and unusual punishments following Congress's passage of the First Step Act of 2018; and, even if there is no Davis error or Eighth Amendment violation, this court should nonetheless vacate his sentence and remand for resentencing so that the district court can reconsider his sentence in view of the First Step Act.The Second Circuit reviewed all defendant's arguments on appeal and found them to be without merit. The court concluded that its decision in United States v. McCoy, 995 F.3d 32 (2d Cir. 2021), in which it held that attempted Hobbs Act robbery and aiding and abetting Hobbs Act robbery categorically qualify as crimes of violence, precludes plaintiff's Davis challenge to his section 924(c) convictions. In regard to plaintiff's remaining arguments, the court held that the passage of the First Step Act does not render his sentence cruel and unusual or otherwise warrants remand to the district court for yet another resentencing. View "United States v. Waite" on Justia Law

In tandem appeals, Plaintiffs Smalls and Daniel filed suit under 42 U.S.C. 1983 alleging that defendants deprived them of their rights to a fair trial by fabricating evidence against them. Daniel also asserted other claims under section 1983 and claims under 42 U.S.C. 1981 and sought equitable tolling of the statute of limitations applicable to some of his section 1983 claims. The district courts ultimately granted defendants' motions, concluding that Smalls and Daniel could not establish favorable terminations within the meaning of McDonough v. Smith, 139 S. Ct. 2149 (2019).The Second Circuit concluded that the district courts erred in dismissing Smalls and Daniels' section 1983 fabricated-evidence claims and entering judgment for defendants. The court explained that McDonough's accrual rule does not import malicious prosecution's favorable-termination requirement onto section 1983 fair-trial claims; where the plaintiff asserts a section 1983 fair-trial claim based on fabricated evidence, all that is required is that the underlying criminal proceeding be terminated in such a manner that the lawsuit does not impugn an ongoing prosecution or outstanding conviction; and this requirement may be satisfied where a criminal conviction has been invalidated or a criminal prosecution has been terminated in the criminal defendant's favor because, in such circumstances, there is no risk that a section 1983 plaintiff's claim will impugn an existing conviction or the basis for an ongoing prosecution. In this case, Smalls and Daniel's criminal proceedings terminated in their favor. Finally, the court also concluded that Daniel's section 1981 claims were properly dismissed, and Daniel's equitable tolling motion was properly denied. Accordingly, the court reversed with respect to the fair-trial claims, affirmed the dismissal of Daniel's other claims, and remanded for further proceedings. View "Smalls v. Collins" on Justia Law