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

Defendant appealed her conviction and sentence for theft of government property in violation of 18 U.S.C. 641. The Second Circuit held that defendant did not waive her right of appeal; the district court was not permitted to order restitution for property stolen outside the limitation period because defendant did not consent to pay such restitution; and violations of section 641 did not constitute continuing offenses, rendering her liable for restitution for funds embezzled outside the limitation period. Accordingly, the court vacated in part and remanded for determination of the proper restitution amount within the limitation period. View "United States v. Green" on Justia Law

The Second Circuit affirmed defendant's conviction on five counts of drug and gun related offenses. The court held that the district court correctly determined that there was no unreasonable search in violation of the Fourth Amendment where the undisputed evidence showed that defendant expressly consented to the officers entering his apartment and the consent implicitly extended to the police dog; given that the officers and dog were lawfully in the apartment, defendant had no legitimate or reasonable expectation of privacy in airborne particles bearing odors; and thus the district court did not err in denying defendant's motion to suppress.The court also held that defendant's Fifth and Sixth Amendment rights to equal protection and trial by a jury was not violated where any procedural error in dismissing Juror No. 8 was harmless. In this case, given the district court's permissible finding that Juror No. 8 was unable to read or write, the conclusion that he was not qualified to serve as a juror was correct. Furthermore, had Juror No. 8 been fully vetted during voir dire, leading to his timely disqualification, the jury would have included just one black juror, as it eventually did. View "United States v. Iverson" on Justia Law

The Second Circuit affirmed the district court's judgment after defendant pleaded guilty to tax evasion and to corruptly endeavoring to obstruct and impede the due administration of the internal revenue laws. Defendant, the founder of an investment management firm, was sentenced to pay restitution of $37 million, serve a 70‐month term of imprisonment, and pay a $10 million fine. The Second Circuit held that the district court did not err in calculating the fine range recommended by the Sentencing Guidelines; defendant was given adequate opportunity to inform the district court of his financial condition and ability to pay a fine; and imposing a $10 million fine was within the district court’s discretion. Defendant's motion to stay his sentence pending this appeal was moot. View "United States v. Zukerman" on Justia Law

The Second Circuit reversed the district court's two pretrial orders suppressing wiretap evidence and GPS data. The court held that the untainted portions of the First Wiretap Affidavit made ample showings to support the authorizing judge's determinations of both probable cause and necessity, and the inclusion of the omitted information as to Previous Authorizations would not have diminished those showings; the district court clearly erred in finding that the mistakes by the wiretap applicant were intentional rather than inadvertent; and the district court failed to apply the test established by Franks v. Delaware, 438 U.S. 154 (1978), where such evidence should not be suppressed because the mistakes were not material.The court also held that the GPS monitoring of defendant was permissible because it was reasonably related to his parole officers' duties; defendant, as a parolee who chose to be placed on GPS monitoring rather than be charged with parole violations and possibly returned to prison, and who acknowledged that the monitoring would occur 24 hours a day, seven days a week, until the end of his period of supervision, had no reasonable or legitimate expectation of privacy that was violated by such monitoring; and thus the GPS generated data should not have been suppressed. View "United States v. Lambus" on Justia Law

A "controlled substance" for purposes of USSG 4B1.2(b) referred exclusively to substances controlled by the Controlled Substances Act (CSA). USSG 2K2.1 adopts the definition of a "controlled substance offense" in section 4B1.2(b). The Second Circuit held that defendant's prior drug conviction under New York Penal Law 220.31 did not qualify as a predicate controlled substance offense. Because defendant's prior state conviction was for violating an indivisible statute, the categorical approach applies, and because the state statute of conviction criminalizes the sale of a substance not criminalized under federal law, the state statute does not categorically match the federal crime. Therefore, defendant's prior New York state drug conviction did not subject him to a heightened base offense under USSG 2K2.1(a). The court vacated the district court's judgment and remanded for resentencing. View "United States v. Townsend" on Justia Law

Defendant appealed his conviction and sentence for being a felon in possession of a firearm and ammunition and possession of crack cocaine with intent to distribute. This case, in which oral argument was heard, was held in abeyance pending decision first in United States v. Jones, 878 F.3d 10 (2d Cir. 2017), then in United States v. Morales, 709 F. App'x 93 (2d Cir. 2018). The court held that the evidence at trial was sufficient to prove possession of crack cocaine with intent to distribute. The court also held that the district court's calculation of defendant's base offense level was not erroneous where the New York offense of robbery in the second degree constituted a "crime of violence" under the Sentencing Guidelines before August 1, 2016. View "United States v. Smith" on Justia Law

The Second Circuit affirmed defendant's convictions for prostituting two minors, in violation of 18 U.S.C. 1591, and for employing a minor in the creation of a sexually explicit video, in violation of 18 U.S.C. 2251. The court held that section 1591 was not unconstitutionally vague and rejected defendant's overbreadth challenge; the statutory language in section 1591 requires that the defendant know or recklessly disregard the fact that a minor was younger than 18 years old; and it did not mandate, to support the increased punishment in subsection (b), that the government prove that a defendant knew or recklessly disregarded that a minor was under the age of fourteen.  The court rejected defendant's venue challenge to his conviction under section 2251 where the jury was entitled to find that venue for prosecution lay in the Eastern District of New York. View "United States v. Thompson" on Justia Law

The Second Circuit affirmed the order of the district court to the extent it denied petitioner's motion to vacate his sentence under 28 U.S.C. 2255. The court held that petitioner's claim did not rely on the rule announced in Johnson v. United States, 135 S. Ct. 2551 (2015), that New York third‐degree robbery was a crime of violence under the Armed Career Criminal Act (ACCA), because his sentence was clearly enhanced pursuant to the force clause of the ACCA. View "Massey v. United States" on Justia Law

The Second Circuit affirmed defendant's conviction of possession of ammunition after having been dishonorably discharged from the military, in violation of 18 U.S.C. 922(g)(6). The court held that defendant's conviction under section 922(g)(6) did not violate the Second Amendment because, even assuming without deciding that plaintiff can claim any Second Amendment protections, those protections did not preclude his conviction. The court held that those who, like defendant, have been found guilty of felony‐equivalent conduct by a military tribunal are not among those "law‐abiding and responsible" persons whose interests in possessing firearms are at the Amendment's core; although defendant's interests were outside the core protections of the Second Amendment, it was burdened substantially and intermediate scrutiny was applicable in his case; and section 922(g)(6) was substantially related to the government's interest of maintaining public safety. The court noted that there was no reason to think that defendant was more likely to handle a gun responsibly just because his conviction for dealing drugs and stolen military equipment (including firearms) occurred in a military tribunal rather than in state or federal court. View "United States v. Jimenez" on Justia Law

The Second Circuit affirmed defendant's conviction and sentence for assault with a dangerous weapon and discharge of a firearm during a crime of violence. The court rejected defendant's contention that the district court gave erroneous instructions to the jury on his defense of duress, because the instruction as given accurately reflected the law of the circuit; the evidence presented through the testimony of former MS-13 members as to the acts of violence in which defendant engaged as he was repeatedly seeking membership in MS-13's BLS clique, and which culminated in his leadership of BLS, dispelled any notion that defendant was involved in the shooting through no fault of his own; and, even if the instructions were erroneous, the error would afford no ground for relief. The court rejected defendant's contention that the district court improperly found that defendant had committed attempted murder where the court declined defendant's invitation to rule that the district court's normal authority to make findings relevant to sentencing vanished because of a speculative possibility. View "United States v. Hernandez" on Justia Law