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

The Second Circuit affirmed defendant's conviction of two counts of insider trading in violation of Section 10(b) of the Securities Exchange Act of 1934, and Rule 10b–5. The court held that defendant had a duty to refrain from trading on nonpublic inside information and that the evidence was sufficient to convict him. In this case, defendant served as a principal investigator for a clinical trial of a cardiac drug developed by Regado Biosciences, a publicly traded biopharmaceutical company, that was designed to prevent blood clotting. After defendant learned that patients suffered adverse effects during the trial, he traded on that nonpublic inside information to avoid a loss and earn a profit in the shares of the company. The court concluded that, taken together, the evidence of defendant's deceptive activity was sufficient for the jury to find that he was a sophisticated investor that knew his actions were unlawful under the charge given by the district court. Finally, there was no abuse of discretion in the district court's evidentiary rulings. View "United States v. Kosinski" on Justia Law

Petitioner, a native and citizen of El Salvador, petitioned for review of the BIA's 2018 decision finding him removable under 8 U.S.C. 1227(a)(2)(A)(iii) for having been convicted of an "aggravated felony" as defined by section 101(a)(43)(A) of the Immigration and Nationality Act (INA). The BIA found that petitioner was convicted of "sexual abuse of a minor" based on his 2010 New York state conviction under New York Penal Law 130.65(3) for sexual abuse in the first degree.The Second Circuit rejected petitioner's contention that section 130.65(3) criminalizes more conduct than the federal definition of "sexual abuse of a minor" covers. The court held that, because a conviction under N.Y. Penal Law 130.65(3) requires both that the victim be under the age of eleven and that the perpetrator's contact with the victim be "for the purpose of gratifying sexual desire," the state statute reaches no farther than the crime of "sexual abuse of a minor" as set forth in section 101(a)(43)(A) and construed by the BIA in In re Rodriguez-Rodriguez, 22 I. & N. Dec. at 996. Therefore, a conviction under the state statute is an aggravated felony under the INA. View "Rodriguez v. Barr" on Justia Law

The Second Circuit denied a petition for review of the the BIA's decision affirming the IJ's order of removal of petitioner to the Dominican Republic. The court held that a conviction under New York Penal Law 165.50 is categorically an aggravated felony under 8 U.S.C. 1101(a)(43)(G). The court deferred to the BIA's reasonable interpretation of the ambiguous term "including" in "including receipt of stolen property" in section 1101(a)(43)(G). Under that interpretation, "'receipt of stolen property' is a distinct aggravated felony independent of theft and the property received need not have been stolen by means of 'theft' as generically defined." The court also determined that an intent to deprive is inherent in the requirement that an offender "knowingly" possesses stolen property. The court considered petitioner's remaining arguments and concluded that they are without merit. View "Santana v. Barr" on Justia Law

The Second Circuit affirmed the district court's denial of defendant's motion for a reduction in sentence under the First Step Act of 2018. The court held that the First Step Act does not require that an eligible defendant receive a plenary resentencing, and it does not obligate a district court to recalculate an eligible defendant's Guidelines range, except to account for those changes that flow from Sections 2 and 3 of the Fair Sentencing Act of 2010, when considering as a discretionary matter whether (or by how much) to grant a sentence reduction. The court also held that the district court's minor factual misstatement regarding the timing of one of defendant's prison disciplinary infractions does not require remand because the error did not affect his substantial rights. View "United States v. Moore" on Justia Law

The Second Circuit reversed the district court's denial of defendant's motion to suppress a firearm discovered after police officers pat-frisked defendant during a traffic stop. The court held that the officers lacked an objectively reasonable belief that defendant was armed and dangerous. The court stated that, at most, the officers had reason to believe that defendant possessed something illicit, but the Constitution requires that the officers have reason to believe this something was dangerous. Therefore, the suppression of the firearm was warranted as the fruit of an illegal search conducted in violation of the Fourth Amendment. View "United States v. Weaver" on Justia Law

Defendant was convicted of charges related to his attempted robbery of a convenience store. After a bifurcated trial where the jury convicted him of all counts, the district court dismissed the violence-in-Hobbs Act robbery count as duplicative of the Hobbs Act robbery count and then rejected the government's argument that the Armed Career Criminal Act (ACCA) mandated imposition of a 15-year minimum incarceratory sentence on defendant.The Second Circuit held that defendant's arguments with respect to Count Three, the firearm-in-crime-of-violence count, are foreclosed by the court's opinion in United States v. Hill, 890 F.3d 51, 60 (2d Cir. 2018), in which the court held that Hobbs Act robbery qualifies, categorically, as a crime of violence under the elements clause of 18 U.S.C. 924(c); defendant's jurisdictional challenge to his conviction on Count Four, the felon-in-possession count, is similarly foreclosed by United States v. Balde, 943 F.3d 73, 92 (2d Cir. 2019), and he cannot establish that the asserted evidentiary and other failures on the part of the government and the district court amount to plain error requiring vacatur or reversal; and the district court acted well within the permissible bounds of its discretion in its various evidentiary rulings and in denying defendant's motion for a new trial.In regard to the government's cross-appeal, the court held that its recent precedents confirm that New York Robbery in the Second Degree falls within the ACCA's definition of "violent felony" and that thus resentencing is required. Accordingly, the court affirmed the judgment of conviction and remanded for resentencing. View "United States v. Walker" on Justia Law

The Second Circuit affirmed the district court's grant on remand of the Government's petition to enforce two Internal Revenue Service summonses, one sent to defendant in his personal capacity and one sent to him in his capacity as a trustee, based on the foregone conclusion and collective entity exceptions to the Fifth Amendment's self-incrimination clause. Defendant's appeal stemmed from the IRS's efforts to investigate his use of offshore bank accounts to improperly conceal federally taxable income.The court agreed with the district court that the Government has shown with reasonable particularity the documents' existence, defendant's control of the documents, and an independent means of authenticating the documents such that the foregone conclusion doctrine applies. The court also agreed with the district court that, as a matter of first impression in this Circuit, a traditional trust is a collective entity subject to the collective entity doctrine. View "United States v. Fridman" on Justia Law

The Second Circuit affirmed defendant's conviction for (1) conspiring to submit false voter registrations and buying voter registrations in violation of 18 U.S.C. 371 and 52 U.S.C. 10307(c) and (2) conspiring to violate the Travel Act by paying bribes for voter registrations and votes, in violation of 18 U.S.C. 371 and 1952. Defendant's convictions stemmed from his involvement in a criminal voting scheme to further a real estate development project.The court held that 52 U.S.C. 10307(c) applied to defendant's conduct because it exposed future federal elections to corruption. In this case, the prohibitions in section 10307(c) apply to any voter registration practices that expose federal elections – present or future – to corruption, regardless of whether any federal candidate is on the immediate ballot. The court explained that New York's registration process is unitary and thus defendant's fraudulent conduct has the potential to affect future federal elections.The court also held that defendant's payment to influence voter conduct fits within the generic definition of bribery and thus violated the Travel Act. The court explained that, because Travel Act bribery is construed broadly, the lack of a precise fit between New York Election Law 17-142 and the New York bribery statute does not matter. View "United States v. Smilowitz" on Justia Law

After the district court granted defendant's motion for resentencing under the First Step Act, it vacated its order and denied his motion as moot when the district court learned that defendant had completed serving his term of imprisonment for his 2005 drug offense and remained imprisoned only because he continued to serve two consecutive sentences imposed for offenses committed while in prison that he did not mention in his original application for re-sentencing.The Second Circuit affirmed, holding that sentences are imposed separately for convictions on specific violations of criminal statutes and are aggregated only for administrative purposes. The court explained that, because sentences within judgments of conviction are otherwise final orders, they are modifiable only in limited circumstances. The court stated that the First Step Act permits such modification—a district court may "impose a reduced sentence" for a "covered offense." However, where an inmate, such as defendant in this case, has already served the term of imprisonment imposed for a "covered offense," the court held that the statute no longer permits relief. Therefore, defendant's motion is moot because the relief authorized by the First Step Act is no longer possible. View "Martin v. United States" on Justia Law

Defendant, while still in custody for possession of child pornography, challenges a condition of his supervised release requiring that he submit to verification testing designed to ensure that he is complying with the other conditions of his term of supervision. Defendant argues that the district court abused its discretion by permitting the probation officer to test him using computerized voice stress analysis – a technology that defendant claims is unreliable – and by giving the probation officer unwarranted discretion over which verification testing device to employ.The Second Circuit dismissed defendant's challenge to the computerized voice stress analysis, holding that the challenge is unripe because it turns on a speculative assessment of what the contested technology will look like in six years when he is released from his term of custody. The court affirmed the delegation of discretion to the probation officer, finding that permitting the probation officer to choose among verification testing tools is no more significant than allowing probation to select among different outpatient therapy options. The court dismissed defendant's challenges to other conditions of his supervised release in a summary order issued simultaneously with this opinion. View "United States v. Villafane-Lozada" on Justia Law