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

Sellers was sentenced to 15 years’ imprisonment for being a felon in possession of a firearm and ammunition under 26 18 U.S.C. 922(g)(1) and under 18 U.S.C. 924(e)(1) of the Armed Career Criminal Act (ACCA). The Second Circuit remanded for resentencing. Application of the ACCA was error. Sellers’s 2001 state conviction for criminal sale of a controlled substance did not qualify as one of the “three previous convictions” necessary to apply the ACCA because he was adjudicated as a youthful offender for that offense under New York law, 18 U.S.C. 924(e)(1). The youthful offender designation “set aside” the conviction. View "United States v. Sellers" on Justia Law

Roy was convicted of conspiracy to commit wire fraud, 18 U.S.C. 1349; three counts of wire fraud, 18 U.S.C. 1343; and conspiracy to commit wire fraud and bank fraud, 18 U.S.C. 1349. The Second Circuit affirmed, rejecting an argument that the district court erred by failing to instruct the jury that proof of an overt act is required for a conviction under the two section 1349 conspiracy charges. Proof of an overt act is not required for a conspiracy conviction under 18 U.S.C. 1349. View "United States v. Roy" on Justia Law

From 1987 to 2001, Bengis and Noll engaged in a scheme to harvest large quantities of South Coast and West Coast rock lobsters from South African waters for export to the United States in violation of both South African and U.S. law. Defendants, through their company, Hout Bay, harvested rock lobsters in amounts that exceeded the South African Department of Marine and Coastal Management’s quotas. In 2001, South Africa seized a container of unlawfully harvested lobsters, declined to prosecute the individuals, but charged Hout Bay with overfishing. Bengis pleaded guilty on behalf of Hout Bay. South Africa cooperated with a parallel investigation conducted by the United States. The two pleaded guilty to conspiracy to commit smuggling and violate the Lacey Act, which prohibits trade in illegally taken fish and wildlife, and to substantive violations of the Lacey Act. Bengis pleaded guilty to conspiracy to violate the Lacey Act. The district court entered a restitution order requiring the defendants to pay $22,446,720 to South Africa. The Second Circuit affirmed, except with respect to the extent of Bengis’s liability, rejecting an argument the restitution order violated their Sixth Amendment rights. View "United States v. Bengis" on Justia Law

Cox was convicted in 2001 on narcotics and firearms charges and was sentenced to 540 months’ imprisonment. On appeal, Cox’s conviction and sentence were affirmed. In 2004, he sought a new trial, arguing that the government knowingly allowed witnesses to testify falsely to his transactions in guns of a type that had not yet been manufactured. The district court denied the motion. Later in 2004, Cox unsuccessfully moved, under 28 U.S.C. 2255 to set aside the convictions. The district court later vacated the firearms convictions and resentenced Cox on the narcotics convictions. Cox appealed. The Second Circuit affirmed. In 2011, Cox filed another section 2255 motion, seeking to overturn the narcotics convictions, claiming ineffective assistance of counsel in their failure to detect and protest the failure to disclose exculpatory evidence. The district court denied the motion, finding the claims time-barred because they “relate[d] only to the original sentencing,” and procedurally barred as first raised on collateral review; Cox had not demonstrated cause and actual prejudice or actual innocence to excuse his failure to raise them previously. The Second Circuit denied certificates of appealability. On some claims, Cox failed to make a substantial showing of denial of a constitutional right; others are procedurally barred. View "Cox v. United States" on Justia Law

Lugo, a citizen of Venezuela, came to the U.S. in 1996 on a nonimmigrant visa, and remained beyond the authorized period. In 2005, she was charged with concealing a felony involving her boyfriend, who sold heroin. On advice of counsel, who told her that she faced up to five years of incarceration, Lugo pled guilty under 18 U.S.C. 4. She was sentenced to time served. Lugo claims that her attorney never explained that a guilty plea could jeopardize her immigration status. In 2007, the Department of Homeland Security charged Lugo as removable. She applied for cancellation of removal based on hardship to her U.S. citizen child, and for relief under the Convention Against Torture. In 2011, an Immigration Judge found that Lugo was barred from cancellation of removal because of her conviction for misprision of felony was a “crime involving moral turpitude” that stops the clock on the 10-year “continuous physical presence” requirement for cancellation of removal under 8 U.S.C. 1229b(d)(1)(B). The BIA affirmed. The Second Circuit vacated and remanded: the rights of fair notice and effective assistance of counsel may provide a reason not to apply, retroactively, new agency rules that establish deportation as a consequence of certain crimes. View "Lugo v. Holder" on Justia Law

Smith alleged that New York State Trooper Campbell began harassing her in 2007, tailgating her in an off-duty vehicle, parking behind her, and questioning Smith about her driving. Smith’s adult son, Tom and Campbell exchanged heated words; Campbell indicated that Smith would receive another ticket because of Tom’s actions. Tom stated that he would speak to Campbell’s supervisor. Campbell left without issuing any tickets. Smith complained about Campbell’s conduct. Hours later, Campbell appeared at Smith’s home and delivered three tickets related to the incident. Smith wrote letters complaining of Campbell’s conduct. Smith’s accusations were dismissed; Smith was convicted on the tickets. Three days later Tom remarked, at a restaurant, that Campbell was harassing his mother. Campbell appeared at Smith’s home that day with another Trooper, resulting in a confrontation with Lilly, Smith’s son-in-law. Two years later, Smith and Lilly filed a 42 U.S.C. 1983 suit. The judge identified: a First Amendment peaceable assembly claim asserted by Lilly, a retaliatory prosecution claim by Smith, an unlawful seizure claim by Lilly, and an intentional infliction of emotional distress claim by both. The district court dismissed, finding the retaliatory prosecution claim time-barred and that Lilly improperly identified the unlawful seizure claim as arising under the Fourth Amendment rather than under section 1983. The Second Circuit vacated as to the unlawful seizure claim, View "Smith v. Campbell" on Justia Law

Ortiz‐Franco, a citizen of El Salvador, entered the U.S. illegally in 1987. Between 1992 and 1996, he was convicted of: criminal possession of a weapon in the third degree, a class D Armed Violent Felony under New York law; attempted petit larceny; and possession of a controlled substance. He conceded that he was removable as an alien present without being admitted or paroled and as an alien convicted of a controlled substance violation and a crime of moral turpitude. He argued that, if he is returned to El Salvador, members a street gang would torture and kill him because of information he provided to federal prosecutors. He applied for asylum, withholding of removal, and deferral of removal under the Convention Against Torture. The IJ ruled that his witness tampering conviction rendered Ortiz‐Franco ineligible for asylum and withholding of removal, and that he did not demonstrate entitlement to CAT relief because he did not establish that it was more likely than not that he would be subject to torture in which the Salvadoran government would acquiesce. The BIA affirmed. The Second Circuit dismissed an appeal for lack of jurisdiction under 8 U.S.C. 1252(a)(2)(C) because Ortiz-Franco raised no colorable constitutional claims. View "Ortiz-Franco v. Holder" on Justia Law

Wright-Darrisaw called the White House Comments Line and, after statements characterized as “foul,” and “irrational,” stated “I’m going to f**k and kill Obama.” A telephone operator transferred her to the Secret Service. The call was not recorded. The Secret Service subpoenaed phone records and determined that Wright-Darrisaw had called the White House Comments Line several times. Wright-Darrisaw admitted to calling to voice her displeasure with child custody laws, but denied making any threats. Wright-Darrisaw was convicted of threatening to kill the President, 18 U.S.C. 871(a), and of making a false statement, 18 U.S.C. 1001(a)(2),and was sentenced to 33 months in prison. The district court declined to apply a four-level decrease in the offense level under U.S.S.G. 2A6.1(b)(6), finding that the threat involved deliberation, and applied a three-level increase under U.S.S.G. 3A1.2(a) because Wright-Darrisaw was motivated by the victim’s status as a government official. The Second Circuit deferred consideration of the sufficiency of the evidence that the communication constituted a “true threat,” pending the Supreme Court’s decision in United States v. Elonis, but remanded for reconsideration of the sentence in light of a Second Circuit holding that “deliberation” under U.S.S.G. 2A6.1(b)(6) is deliberation related to the communication of the threat itself. View "United States v. Wright-Darrisaw" on Justia Law

Over the past several years, Arzuaga, who is currently incarcerated in Connecticut, filed three separate actions against prison officials under 42 U.S.C. 1983. Although the district court initially granted Arzuaga’s motion to proceed in forma pauperis (IFP), the court later revoked Arzuaga’s IFP status because Arzuaga had received approximately $6,000 in past‐due Social Security benefits that he had not reported to the court. Arzuaga subsequently failed to pay the filing fees. The district court dismissed all three actions. The Second Circuit vacated. Arzuaga’s past‐due Social Security benefits did not provide a basis for revoking his IFP status because the No Social Security Benefits for Prisoners Act of 2009 barred Arzuaga from accessing those benefits while incarcerated, 42 U.S.C. 404(a)(1)(B)(ii). After the three complaints were filed, Arzuaga received a separate deposit of $350 into his prisoner trust account and spent that money on consumer goods rather than filing fees. The court rejected an argument that by failing to apply these funds to filing fees, Arzuaga made himself ineligible for IFP status. View "Arzuaga v. Quiros" on Justia Law

Smith was charged with murder, based on a 1996 Bronx armed robbery. The prosecution called an incarcerated witness, Ferguson, to whom Smith had made incriminating statements while in jail, indicating that Ferguson was not a government agent. Ferguson later admitted that he had previously been a paid informant. Defense never moved to suppress the incriminating statements. Following his conviction, Smith’s new counsel uncovered undisclosed evidence that Ferguson had collaborated with law enforcement for four years before Smith’s trial. State courts rejected direct appeals. Smith, pro se, moved to vacate his conviction. The state court denied the motion as unsupported by the record. Smith, through counsel, filed another motion, arguing for the first time that counsel was ineffective for failing to move to suppress. The state court denied the motion as “procedurally barred and meritless … defendant was in the position to adequately raise all issues … in the previous motion [and] failed to establish … ineffective assistance of counsel.” Smith sought habeas relief under 28 U.S.C. 2254, reasserting the ineffective assistance claim. The district court granted the writ, finding that the state court decision rested on procedural grounds. The Second Circuit reversed: the decision was adjudication on the merits, entitled to AEDPA deference, and not so lacking in justification as to warrant habeas relief. View "Fischer v. Smith" on Justia Law