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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

Posted in: Criminal Law

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The ACLU filed suit under the Freedom of Information Act (FOIA), seeking documents concerning drone strikes. On appeal, defendants sought to vacate a ruling that a certain fact has been officially acknowledged and to leave redacted from the district court's public opinion the fact and related sentences. The Second Circuit vacated the ruling of official acknowledgement and remanded with direction to leave redacted the district court's public opinion of all redactions currently made in that opinion. View "American Civil Liberties Union v. Department of Justice" on Justia Law

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The Second Circuit affirmed defendant's conviction of misdemeanor computer intrusion in violation of 18 U.S.C. 1030(a)(2)(C), a provision of the Computer Fraud and Abuse Act of 1986 (CFAA). The court held that defendant's challenge to the constitutionality of section 1030(a)(2)(C) failed because the statute was not unconstitutionally vague and, even if the statute's application may be unclear in some marginal cases, defendant's conduct fell squarely and unambiguously within the core prohibition of the statute. The court also held that the district court did not err by denying defendant's motion to suppress evidence obtained pursuant to search warrants issued under the Stored Communications Act and obtained during searches of defendant's home in Italy. Finally, the court rejected defendant's challenge to the authentication of screenshots of websites registered to defendant for use in the click fraud scheme, which were captured and stored by the Internet Archive, and maintained as business records of that entity. View "United States v. Gasperini" on Justia Law

Posted in: Criminal Law

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The Second Circuit granted consolidated petitions for review of a final rule published by the National Highway Traffic Safety Administration indefinitely delaying a previously published rule increasing civil penalties for noncompliance with Corporate Average Fuel Economy standards. The court held that the agency lacked statutory authority to indefinitely delay the effective date of the rule. Furthermore, the agency, in promulgating the rule, failed to comply with the requirements of notice and comment rulemaking pursuant to the Administrative Procedure Act. Accordingly, the court vacated the rule. View "Natural Resources Defense Council v. National Highway Traffic Safety Admin." on Justia Law

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The Second Circuit reversed the district court's grant of partial summary judgment for plaintiff on her claim that Time Warner knowingly or willfully violated the Telephone Consumer Protection Act of 1991, 47 U.S.C. 227, by using an "automatic telephone dialing system" to call her cell phone 153 times without her consent. The court held that the district court's analysis was based on an incorrect interpretation of the statutory text where the district court relied primarily on a Declaratory Ruling and Order issued by the FCC in 2015 that has since been invalidated by the D.C. Circuit. When the court considered the statute independently, without an administrative interpretation to defer to, the best interpretation of the statutory language was the one suggested by the D.C. Circuit's discussion in ACA Int'l v. FCC, 885 F.3d 687, 699 (D.C. Cir. 2018): in the TCPA's definition of an autodialer, a device's "capacity" referred to its current functions absent additional modifications, regardless of whether those functions were in use during the offending call. Accordingly, the court remanded for the district court to develop the factual record and to apply the appropriate standard. View "King v. Time Warner Cable Inc." on Justia Law

Posted in: Consumer Law

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In 1999, Villanueva was indicted for unlawful possession of a firearm by a convicted felon, 18 U.S.C. 922(g)(1). The indictment alleged two prior convictions for narcotics violations, a third for first-degree assault, Conn. Gen. Stat. 53a‐59(a), and a fourth for assault on an officer. After a jury found Villanueva guilty, a presentence report recommended sentencing under the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e) minimum 15-year sentence provision. The report reflected that the first-degree assault conviction resulted from Villanueva’s firing a gun three or four times and hitting his victim in the shoulder and calculated a Guidelines range of 262‐327 months. The court concluded that each of the narcotics convictions was a “serious drug offense” and at least one of the assault convictions was a “violent felony” under ACCA without specifying whether the elements clause or the residual clause of ACCA applied. In 2015, the Supreme Court ruled that the “residual clause” of the ACCA was unconstitutionally vague. In 2016, the district court vacated Villanueva’s sentence and sentenced him to time served. The Second Circuit disagreed and remanded, finding that the Connecticut statute, analyzed under the so‐called “modified categorical approach,” has as an element, the use of “physical force” as federal law uses in defining “violent felony.” View "Villanueva v. United States" on Justia Law

Posted in: Criminal Law

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The district court rejected Plaintiffs’ claim that New York’s ban on gravity knives was void for vagueness under the Due Process Clause as applied to “[k]nives that are designed to resist opening from their folded and closed position,” or common folding knives. New York law defines a gravity knife as a knife that can be opened to a locked position with a one‐handed flick of the wrist; Plaintiffs argued that the wrist‐flick test is so indeterminate that ordinary people cannot reliably identify legal knives. The Second Circuit affirmed. Because plaintiffs’ claim would, if successful, effectively preclude all enforcement of the statute, and because plaintiffs sought to prove their claim chiefly with hypothetical examples of unfair prosecutions that are divorced from their individual facts and circumstances, the court deemed it a facial challenge. Plaintiffs were required to show that the gravity knife law is invalid in all applications, including as it was enforced against them in three prior proceedings. They did not meet their burden under this strict standard. View "Copeland v. Vance" on Justia Law

Posted in: Constitutional Law

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New York authorities arrested Olmeda for attempted murder, attempted assault on a police officer with a deadly weapon, attempted assault, and criminal possession of a weapon. Olmeda had two firearms in his possession. Later searches of his home and storage locker revealed more than 20 additional firearms. While state proceedings were ongoing, a federal grand jury indicted Olmeda as a felon in possession of a firearm, 18 U.S.C. 922(g)(1), and for possession of unregistered firearms, 26 U.S.C. 5845, 5861(d). Olmeda pleaded guilty to the six federal counts. The government argued that Olmeda should receive a four‐level enhancement under U.S.S.G. 2K2.1(b)(6) because he used one of the firearms in connection with another felony offense—the altercation with the New York police officers (relevant conduct enhancement). Olmeda asked that his federal sentence be concurrent with any term of imprisonment for the pending state charges, citing U.S.S.G. 5G1.3. The court declined to order a concurrent sentence, then held a “Fatico hearing” and concluded that the government had proven the state offenses for the relevant conduct enhancement by a preponderance of the evidence. The district court applied that increase and calculated a Guidelines range of 121-151 months, and sentenced him to 151 months. Olmeda had not yet been convicted in state court. The Second Circuit vacated. Section 5G1.3(c) applies where state charges for relevant conduct are pending at the time of the federal sentencing. View "United States v. Olmeda" on Justia Law

Posted in: Criminal Law

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New York law provides that a court may order that a person who has information material to a criminal proceeding be detained to secure her attendance at the proceeding, N.Y. Crim. Proc. Law 620.10–50. In 2008, McKinnies, a New York Police Officer, was under investigation for potential insurance fraud. McKinnies’ car, which she had reported stolen, had turned up in a “chop shop” covertly run by the NYPD. McKinnies stated her friend “Alexandra Griffin” was the last person to drive her car. But “Alexandra Griffin” stated that she had never been given the vehicle, did not have a driver’s license, and that her surname was Simon. Her real name is Dormoy, she is Simon's daughter. Simon was twice taken to the precinct and held for a total of 18 hours over two days. Simon sued under 42 U.S.C. 1983, claiming false arrest and imprisonment. Simon alleged that the warrant, on its face, directed officers to bring Simon to court at a fixed date and time for a hearing to determine whether she should be detained as a material witness. Simon was never presented to the court. The district court held that the defendants are entitled to qualified immunity and granted summary judgment in their favor. The Second Circuit vacated and remanded. With the facts taken in the light most favorable to Simon, the defendants violated Simon’s clearly established Fourth Amendment rights and are not entitled to qualified immunity. View "Simon v. City of New York" on Justia Law

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The Second Circuit vacated the district court's dismissal of a securities action based on lack of subject matter jurisdiction. In this case, the district court concluded that plaintiffs failed to sufficiently allege a "domestic transaction" under section 10(b) of the Securities Exchange Act of 1934. The court held, however, that plaintiffs plausibly alleged a domestic transaction cognizable under section 10(b) because the agreement at issue was entered into in New York and irrevocable liability was incurred in the United States. The court rejected the argument that the areement was so predominately foreign as to be impermissibly extraterritorial. Therefore, the court remanded for further proceedings. View "Giunta v. Dingman" on Justia Law

Posted in: Securities Law