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

The False Claims Act (“FCA”), 31 U.S.C. Sections 3729–32, provides that when a private person brings an action under the FCA on behalf of the federal government, the “complaint shall be filed in camera, shall remain under seal for at least 60 days, and shall not be served on the defendant until the court so orders.” Alleging violations of the FCA, Relator Clifford Weiner brought a complaint in district court, which the district court dismissed for untimely service of process. Relator argued that because the district court never expressly ordered him to serve Defendants in accordance with Section 3730, the clock for service of process never began to run, and dismissal for untimely service was improper.   The Second Circuit agreed with Relator and vacated. The court explained that Defendants have not identified an error of law or an erroneous factual finding embedded in the district court’s decision denying Rule 41(b) dismissal. Nor have they shown that the district court’s conclusion fell outside of the range of permissible decisions. Specifically, as the district court noted, Relator was not given express notice that his delays could result in dismissal, and the court had not devoted substantial resources to the action. View "United States ex rel. Weiner et al. v. Siemens AG et al." on Justia Law

Petitioner appealed from the denial of his successive Section 2255 motion challenging his conviction and accompanying sentence for using or carrying a firearm in relation to a crime of violence in violation of 18 U.S.C. Section 924(c). In his motion, Petitioner argued that his  924(c) conviction was invalid in light of United States v. Davis, 139 S. Ct. 2319 (2019). The district court denied the motion because it determined that Petitioner’s Section 924(c) conviction rested on the valid predicate crime of murder. The district court further held that its Pinkerton instruction—which permits a jury to convict a defendant of a substantive offense committed by his co-conspirators—did not undermine the validity of the Section 924(c) predicate.   The Second Circuit affirmed, concluding that intentional murder under New York law, even when the conviction is based on a Pinkerton theory of liability, qualifies as a crime of violence within the meaning of Section 924(c). Under a Pinkerton theory, the defendant is convicted of the substantive offense—not of conspiring to commit the offense—so he has committed a crime of violence if the substantive offense is a crime of violence. Because Pinkerton does not transform a substantive offense into a conspiracy offense, it does not implicate Davis. View "Gomez v. United States" on Justia Law

Petitioner, a native and citizen of Mexico, seeks a review of an April 20, 2022, decision of the Board of Immigration Appeals (“BIA”) affirming a decision of an Immigration Judge (“IJ”) ordering her removal and denying her application for cancellation of removal after determining she had been convicted of a crime involving moral turpitude (“CIMT”). That conviction, for abuse of a corpse in violation of Arkansas Code Annotated (“ACA”) Section 5-60-101, stemmed from concealing her child’s body in a closet after he was murdered. In her petition for review, Petitioner argued that the BIA and IJ erred because her conviction under ACA Section 5-60-101 is not categorically a CIMT.   The Second Circuit granted the petition, vacated the BIA’s order of removal and remanded. The court explained that the language of ACA Section 5-60-101(a)(1) allows someone to be convicted if he or she knowingly “removes” or “disinters” a corpse, no matter the reason and without regard to whether it is done in a manner offensive to a person of reasonable sensibilities. The court explained that the broad language makes it clear that one can be convicted under the statute for conduct that is not “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” Thus, because ACA Section 5-60-101 criminalizes conduct that is not invariably vile or depraved, a conviction under the statute cannot categorically be considered a CIMT. The BIA did not conduct an elements-based categorical inquiry. Instead, it applied an inapposite “realistic probability” test. View "Giron-Molina v. Garland" on Justia Law

Defendant appealed a judgment of conviction entered by the district court convicting him on his plea of guilty to possession and receipt of child pornography, and (b)(1), and obstruction of justice under 18 U.S.C. Section 1512(c)(2), contending that his Fourth Amendment rights were violated by a probation officer’s search of his cell phone and a further search by New York State Police and that the trial court erred in failing to allow him allocution at sentencing.   The Second Circuit affirmed Defendant’s conviction but rejected the government’s argument and remanded for resentencing. The court explained that Defendant argued that resentencing is required because he was not afforded his right to allocute. He argued that the court’s failure to provide allocution calls for automatic resentencing, even under plain error review, given that he made no objection during the sentencing proceeding. The government’s brief focuses on enforcement of his waiver of appeal and advances no argument against ordering resentencing in the event we do not enforce the appeal waiver. The court concluded that it should remand for resentencing, as Defendant has made a reasonable argument that he is entitled to resentencing, and the government has made no argument to the contrary. Because the government makes no argument to the contrary, the court explained that it does so without ruling as to the appropriate standard of review for an unpreserved claim of failure to grant allocution. Accordingly, the court remanded to the district court with instructions to vacate his sentence and resentence, affording him the right of allocution. View "United States v. Lajeunesse" on Justia Law

Defendant challenged the procedural and substantive reasonableness of the forty-five-year sentence imposed by the district court following her guilty plea to one count of conspiracy to sexually exploit a child and two substantive counts of sexual exploitation of a child. On appeal, Defendant argues that the district court erred when it (1) predetermined her sentence at the outset of the sentencing proceeding, (2) failed to verify at sentencing whether she and her counsel had read and discussed the presentence investigation report, (3) miscalculated her offense level under the United States Sentencing Guidelines, and (4) imposed a substantively unreasonable term of imprisonment.   The Second Circuit affirmed. The court rejected Defendant’s contentions that the district court predetermined her sentence and imposed a substantively unreasonable term of imprisonment. The court also rejected Defendant’s claim that the district court’s purported miscalculation of her offense level under the Guidelines warrants remand in this case. With respect to Defendant’s remaining argument, the court agreed that the district court failed to verify whether she and her counsel had read and discussed the PSR in advance of sentencing, as is required by Federal Rule of Criminal Procedure 32(i)(1)(A). The court concluded that the error was not prejudicial. View "United States v. Gates" on Justia Law

Petitioners appealed from orders of the district court denying their petitions for habeas relief pursuant to 28 U.S.C. Section 2255, following their 2012 convictions for conspiracy to commit Hobbs Act robbery and use of a firearm in furtherance of a crime of violence – specifically, the Hobbs Act robbery conspiracy – that caused the death of another person, in violation of 18 U.S.C. Section 924(c) and (j). On appeal, Petitioners contend that the district court erroneously enforced the collateral-attack waivers in their plea agreements, which they argue are unenforceable in light of Johnson v. United States, 576 U.S. 591 (2015), and United States v. Davis, 139 S. Ct. 2319 (2019).   The Second Circuit dismissed the appeal and explained that subsequent changes in the law do not allow Petitioners to back out of their valid agreements with the government; the waivers are enforceable. The court explained that a waiver of the right to bring a postconviction challenge is presumptively enforceable, even after the legal landscape shifts. A defendant who wishes to maintain his right to collaterally attack his conviction in the event of unforeseen legal developments may, of course, attempt to negotiate more favorable waiver terms with the government before pleading guilty. But where the waiver itself is clear, unambiguous, knowingly and voluntarily entered, and supported by consideration – here, the government’s agreement not to pursue charges or arguments that could have resulted in a much higher sentence – the terms of the plea agreements must be enforced. View "Cook v. United States" on Justia Law

New York has a merit time allowance system in which prisoners serving indeterminate sentences for certain non-violent offenses can earn “merit time allowances” to reduce their minimum sentences by one-sixth. Plaintiff claims that New York prison officials revoked his merit time allowance and rescinded his merit-based parole release date without a hearing in violation of his procedural due process rights. The district court dismissed Petitioner's petition, finding that the prison official were entitled to qualified immunity because Petitioner's rights were not clearly established. Petitioner appealed.Recognizing that Petitioner had a protected liberty interest in his expected release date once it was granted by the Parole Board, the Second Circuit nevertheless concluded that the prison officials are entitled to qualified immunity because Petitioner's rights were not clearly established at the time of the prison officials’ conduct. View "Steven Bangs v. Walter William Smith, et al." on Justia Law

Defendant appealed from the district court’s judgment of conviction on charges including attempted murder in aid of racketeering and possession of a firearm in furtherance of a crime of violence. Defendant argued that his firearms conviction should be vacated because the predicate offenses on which the conviction was based are not “crimes of violence” in light of United States v. Davis, 139 S. Ct. 2319 (2019), and United States v. Taylor, 142 S. Ct. 2015 (2022).   The Second Circuit affirmed. The court concluded that Defendant’s section 924(c) conviction remains valid even after Davis and Taylor because one of the predicate offenses underlying the conviction – attempted murder in aid of racketeering – is a categorical crime of violence. The court explained that here, unlike Hobbs Act robbery, the crime of second-degree murder cannot be committed through the mere threat of force and must instead involve the actual use of force. Since attempted murder requires both an intent to use physical force and a substantial step towards the use of physical force, it satisfies the “attempted use . . . of physical force” element under section 924(c), 18 U.S.C. Section 924(c)(3)(A), and thereby qualifies as a crime of violence. View "United States v. Pastore" on Justia Law

Defendant pleaded guilty to unlawful possession of a firearm and ammunition after previously having been convicted of a felony. The district court determined that Defendant’s recommended range of imprisonment under the Sentencing Guidelines was 15 to 21 months. On July 7, 2021, the court nevertheless sentenced Defendant principally to an above-Guidelines sentence of 48 months of imprisonment. Defendant argued that his sentence was both procedurally and substantively unreasonable because the district court failed to adequately explain its rationale for the sentence it imposed on Defendant and because the district court’s stated justifications were insufficient to support the sentence imposed.   The Second Circuit affirmed the judgment. The court explained that to hold that Defendant’s sentence was not ultimately reasonable, the court would need to conclude that the sentence he received was “shockingly high.” Defendant argued that his sentence meets that standard because, inter alia, he had a difficult upbringing, completed many rehabilitative program hours while in prison, and does not have a lengthy history of violence. The court explained that these facts weigh in Defendant’s favor and likely were part of the district court’s reasons for not sentencing Defendant to a 70-month imprisonment term as the government requested and as Defendant received when he was convicted of the same offense in 2005. However, they are not strong enough to demonstrate that the district court abused its discretion when sentencing Defendant to a 48-month imprisonment term. Accordingly, the court concluded that the district court did not commit any plain procedural error when imposing Defendant’s sentence. View "United States v. Davis" on Justia Law

In the months following the 2020 presidential election, Defendant-Appellant threatened prominent elected officials in several posts on various social media platforms. A jury convicted Defendant of one count of threatening to assault and murder members of Congress. The district court sentenced Defendant to a prison term of nineteen months. On appeal, Defendant challenged the sufficiency of the evidence, a jury instruction, the partial closure of the courtroom due to the COVID-19 pandemic, and his sentence.The Second Circuit affirmed. The court explained that the constitutional fact doctrine’s requirement that courts “determine for themselves whether the fact-finder appropriately applied First Amendment law to the facts” is inapplicable where, as here, the First Amendment is not implicated. The court found that the evidence was sufficient to support Defendant’s conviction.   Defendant also argued that the district court violated his right to a public trial by excluding his father from the courtroom during the trial. The court explained that the Sixth Amendment guarantees defendants in a criminal prosecution the right to a public trial. However, the court reasoned as a general matter, courts may constitutionally close a courtroom under certain circumstances. Applying the relevant four-part test, the court found that the district court did not plainly err by excluding Defendant’s father from the trial courtroom.   Defendant also challenged the district court’s sentence on the ground that it improperly considered a rehabilitative purpose in sentencing him to prison. The court explained that in sentencing Defendant, the district court did not impermissibly consider rehabilitation. Rather, it considered the factors prescribed by 18 U.S.C. Section 3553(a) View "United States v. Hunt" on Justia Law