Articles Posted in US Court of Appeals for the Second Circuit

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Petitioner, convicted of attempted criminal contempt in the second degree and harassment in the second degree, petitioned for habeas relief under 28 U.S.C. 2254. Petitioner was sentenced to a one-year conditional discharge, with the condition that she abide by a two-year order of protection. The Second Circuit affirmed the district court's dismissal of the petition, holding that the order of protection did not place her "in custody" for purposes of section 2254(a). View "Vega v. Schneiderman" on Justia Law

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When the U.S. Attorney has refused to make a Federal Rule of Criminal Procedure 35(b) motion for reasons that are not invidious or unrelated to a legitimate government concern, it is not the office of the court to weigh the equities or reassess the facts underlying the government's exercise of its discretion. In this case, the United States appealed an order and second amended judgment reducing defendant's amended judgment in 1999 following his conviction. The Second Circuit held that the district court exceeded the scope and nature of its inquiry and the findings the district court relied on were not sufficiently supported by the record. Here, defendant had committed perjury at his trial; in two other criminal cases he had submitted affidavits that the respective presiding judges found could not be credited; and, most relevantly, he had purported to cooperate with the government with regard to terrorism plans while instead actively misleading the government and affirmatively compromising the investigative efforts he caused it to undertake. View "United States v. Scarpa" on Justia Law

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Petitioner, a native and citizen of Grenada, sought review of the BIA's decision affirming the IJ's denial of his applications for cancellation of removal, asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The applications were denied based on petitioner's conviction under NYPL 220.31 for criminal sale of a controlled substance in the fifth degree. The Second Circuit held that NYPL 220.31 defines a single crime and is therefore an indivisible statute. Therefore, the BIA should have applied the categorical approach. Applying the categorical approach, the court held that petitioner's conviction did not constitute a commission of an aggravated felony and consequently did not bar him from seeking cancellation of removal and asylum. The court held that it lacked jurisdiction to consider the remainder of the petition. Accordingly, the court granted the petition in part, vacated the BIA's rulings in part, and remanded. View "Harbin v. Sessions" on Justia Law

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After petitioner committed a drug crime but before his crime was adjudicated, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 8 U.S.C. 1101(a)(13)(C)(v). At issue was whether the statute can be given effect with respect to petitioner's crime, even though he committed the crime before the statute's passage. The Second Circuit held that the presumption against retroactive legislation barred such an application because the plain text of the statute attaches legal consequences at the time a lawful permanent resident commits a crime, rather than at the time of conviction. Accordingly, the court granted the petition for review, vacated the BIA's order of removal, and remanded for further proceedings. View "Centurion v. Sessions" on Justia Law

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Contractual disclaimers of reliance on prior misrepresentations do not render those misrepresentations immaterial under the criminal mail and wire fraud statutes. The Second Circuit affirmed defendant's conviction and sentence for conspiring to commit mail and wire fraud, substantive counts of both, and making false statements to a government agent. Defendant's conviction stemmed from his work at Vendstar, a company that sold valueless vending machine business opportunities to its victims. The court held that, although contractual disclaimers were relevant to the jury's determination of defendant's guilt, they did not render extra-contract misrepresentations immaterial as a matter of law. View "United States v. Weaver" on Justia Law

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Defendants Burden and Buchanan were sentenced to life imprisonment based on their convictions for, among other things, racketeering, violent crimes in aid of racketeering, and conspiracy to distribute and possess with intent to distribute more than 50 grams of cocaine base and five kilograms or more of cocaine. The Second Circuit held that defendants' appeal waivers were enforceable, but construed them narrowly so as not to encompass defendants' appeals of their terms of supervised release. The court declined to resolve whether the district court erred in failing to advise defendants that they faced terms of supervised release, because even assuming that it did, the error was not plain. However, plain error was committed when the district court implicitly hinged defendants' life terms of supervised release on the need for retribution—an imperative that was relevant to fashioning a term of incarceration, but not to fashioning a term of supervised release. Accordingly, the court vacated the terms of supervised release and remanded for resentencing. The court affirmed in all other respects. View "United States v. Burden" on Justia Law

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Defendant Cummings was convicted of drug and firearms charges related to causing the death of a person. The Second Circuit held that the district court erred by admitting hearsay evidence of a death threat he allegedly made against a government witness, and such error was not harmless. In this case, the hearsay was especially toxic because it created a grave risk that the jury would use it as evidence of Cummings's murderous propensity. The court explained that risk was heightened by the lack of a limiting instruction, the similarity between the death threat and the underlying charges, the government's argument on summation suggesting that the threat was substantive proof of Cummings's guilt, and his inability to cross‐examine the third‐party declarant who heard his alleged threat. Accordingly, the court vacated Cummings's convictions and remanded for a new trial. The court also granted Defendant Nwanko's counsel's Anders motion to withdraw as counsel and issued an order simultaneously with this opinion. View "United States v. Cummings" on Justia Law

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Defendant argued that his defense counsel provided ineffective assistance of counsel based on a conflict of interest because counsel was involved in a possible secret sexual relationship with defendant's mother. The district judge questioned counsel, but counsel refused to answer the questions and is now deceased. Defendant ultimately agreed to waive any hypothetical conflicts; the district court decided that any conflict was waived; and the district court accepted defendant's guilty plea. The Second Circuit affirmed the conviction, holding that defendant's claim, considering the gaps in the record, was better suited for collateral review. Therefore, the court declined to consider the ineffectiveness argument on direct appeal and reasoned that a thorough evidentiary hearing would be justified if a habeas petition was filed. View "United States v. DeLaura" on Justia Law