Justia Criminal Law Opinion Summaries

In pleading guilty to wire fraud and tax evasion, Defendant agreed to forfeit to the Government his interests in Jreck Subs, a franchised chain of sandwich shops that he used to perpetrate his fraud. Claimants, the Swartz Family Trust and Orienta Investors, LLC filed third-party petitions asserting an interest in the forfeited property. The district court granted the Government’s motions to dismiss the petitions, finding that the Trust’s petition was not submitted before the thirty-day deadline to file such petitions expired and that Orienta failed to state a claim under the forfeiture statute, as either the holder of an interest superior to the Government or as a bona fide purchaser for value. The district court also denied Orienta’s motion for reconsideration, as well as Orienta’s motion for leave to amend its petition.   The court affirmed in part and vacated in part. The court concluded that the Trust’s petition was correctly dismissed as untimely and that Orienta’s petition does not state a claim. The court remanded, however, to allow the district court to further consider Orienta’s motion for leave to amend its petition with respect to its claim that it is a bona fide purchaser for value. The court explained that here, two things potentially tip the scales in favor of granting Orienta leave to amend its bona fide purchaser claim. First, the district court based its dismissal of that claim primarily on a technical issue. Second, the Government acknowledged that additional factual development was necessary to resolve whether Orienta’s petition stated a bona fide purchaser for value claim. View "United States v. Swartz Family Trust" on Justia Law

A jury convicted Defendant of violating 18 U.S.C. Section 2251(a), which prohibits using a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of that conduct. The jury also convicted Defendant of possessing and distributing child pornography based on different images found on his phone. The district court sentenced Defendant to 70 years in prison. Defendant argued that the evidence was insufficient to convict him on the production charge, that the district court erred in applying a sentencing enhancement based on a finding that he was a repeat and dangerous offender and that his sentence was substantively unreasonable.   The Second Circuit affirmed. The court held that there was sufficient evidence for a rational jury to conclude, beyond a reasonable doubt, that Defendant “used” a minor “to engage in . . . sexually explicit conduct” under 18 U.S.C. Section 2251(a) when he filmed himself masturbating near the victim, directed his conduct toward her, and framed the visual depiction to show that she was a passive participant in his sexual activity. Further, the court held that the district court did not clearly err in applying the five-level repeat-and-dangerous-offender enhancement because sufficient evidence supported the finding that Defendant abused the victim. Finally, the court held that Defendant’s sentence was substantively reasonable. View "United States v. Osuba" on Justia Law

Defendant appealed the district court’s judgment sentencing him to 57 months imprisonment following his plea of guilty to one count of wire fraud. Defendant argued that the district court incorrectly applied a two-level obstruction enhancement and improperly denied him a three-level sentence reduction.   The Second Circuit affirmed. The court held that the district court correctly applied U.S.S.G. Section 3C1.1’s obstruction enhancement to Defendant’s sentence and did not abuse its discretion in denying Defendant U.S.S.G. Section 3E1.1’s acceptance of responsibility reduction. The court explained that at least two of the forged letters satisfy Section 3C1.1’s materiality requirement, which makes the application of the obstruction enhancement proper. In deciding whether to apply the sentence reduction, a district court considers factors such as the defendant’s “voluntary termination or withdrawal from criminal conduct or associations.” U.S.S.G. Section 3E1.1 application note 1(b). Here, the district court observed that Defendant’s forgery of the sentencing letters resembled the forgeries he submitted as part of the donation scheme, indicating that Defendant had not abandoned his criminal conduct. These were appropriate considerations. View "U.S. v. Strange" on Justia Law

A jury convicted Defendant of violating 18 U.S.C. Section 2251(a), which prohibits using a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of that conduct. The jury also convicted Defendant of possessing and distributing child pornography, in violation of 18 U.S.C. Section 2252A, based on different images found on his phone. The district court sentenced Defendant to 70 years in prison. Defendant argued that the evidence was insufficient to convict him on the production charge, that the district court erred in applying a sentencing enhancement based on a finding that he was a repeat and dangerous offender and that his sentence was substantively unreasonable.   The Second Circuit affirmed. The court reasoned that because Defendant took actions designed to depict the minor as the passive recipient of his sexual actions, the court concluded, on the particular facts of this case, that there was sufficient evidence for a jury to conclude beyond a reasonable doubt that Defendant used the minor to engage in sexually explicit conduct. The court further concluded that the evidence supported the enhancement and that the sentence was not shockingly high in light of Defendant’s conduct. View "United States v. Osuba" on Justia Law

On June 22, 2021, the Second Circuit issued an opinion affirming the convictions and sentences of Defendants T.E. and K.A. after a jury trial. Among other things, the court upheld T.E.’s conviction on Count Seven for possessing and brandishing a firearm in furtherance of a crime of violence. Defendant then filed a petition for a writ of certiorari. The Supreme Court vacated the court’s decision with respect to T.E. and remanded the case for further consideration in light of its decision in United States v. Taylor, 142 S. Ct. 2015 (2022).   The Second Circuit concluded that having given due consideration to Taylor, it vacated T.E.’s conviction on Count Seven and remanded for resentencing on all of T.E.’s remaining counts of conviction. The court held that kidnapping in the second degree under New York Penal Law Section 135.20 is not categorically a crime of violence pursuant to Section 924(c)(3)(A). The court left intact all other aspects of its original opinion, including the court’s affirmance of T.E.’s other convictions. View "United States v. Eldridge" on Justia Law

Defendant was found guilty of gun possession in furtherance of drug trafficking and being a felon in possession of a firearm. Defendant appealed, arguing that evidence regarding a firearm and marijuana should have been suppressed because the warrant pursuant to which the search of his second-floor apartment in a triplex was conducted did not authorize a search of the shared back porch where this evidence was found. He also challenged the sufficiency of the government’s evidence of his possession in furtherance of drug trafficking and the application of a sentencing enhancement for obstruction of justice.   The Second Circuit affirmed. The court explained that as to the suppression issue, although the court rejects any categorical rule that the Fourth Amendment always allows warrantless searches of all shared areas in multi-unit buildings, the court affirmed the district court’s denial of Defendant’s motion because he failed to carry his burden to show that his Fourth Amendment rights extended to the shared back porch of the triplex where he lived. Because the court also concluded the evidence was sufficient to convict him of possession of a firearm in furtherance of marijuana trafficking, and the application of the obstruction enhancement was appropriate, the court affirmed the judgment of the district court. View "United States v. Lewis" on Justia Law

After pleading guilty to first-degree conspiracy and second-degree murder in state court, Petitioner filed an unsuccessful federal habeas petition as well as an unsuccessful motion in state court to vacate his conviction. In this second habeas petition presently before the Second Circuit, Petitioner argued that newly discovered evidence shows that he is actually innocent of the murder charge. The district court dismissed the petition as both procedurally barred and lacking merit. Although Petitioner’s petition was filed after the one-year time limit in 28 U.S.C. Section 2244(d), he argued, based on Schlup v. Delo, 513 U.S. 298 (1995), for an equitable exception to the time limit based on a sufficient   The Second Circuit affirmed. The court held that Petitioner’s claim is time-barred because he failed to show that it is “more likely than not that no reasonable juror would have convicted him.” The court reasoned that the state post-conviction court’s factual findings, including determinations of witness credibility, are entitled to the presumption of correctness under Section 2254(e)(1). Here, the court agreed with the district court that Petitioner has not satisfied his burden of showing by clear and convincing evidence that the state court’s factual findings are wrong. Nor has Petitioner otherwise demonstrated that it is “more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt.” Because Petitioner’s petition fails to satisfy the high threshold standard set forth in Schlup for a gateway claim of actual innocence, the court concluded that it is untimely. View "Cosey v. Lilley" on Justia Law

Defendant appealed a judgment against him following a jury trial where he was convicted of one count of conspiring to illegally donate  monies to a political campaign and one count of aiding and abetting over $25,000 of such donations. Defendant argued that the district court erred in giving the standard jury instruction on willfulness: that “a person acts ‘willfully’ when he acts with a ‘bad purpose’ to disobey or disregard the law. Further, Defendant challenged the district court’s refusal to 1) instruct the jury that for count one, a co-conspirator must knowingly and willfully join the conspiracy with the “intent of achieving [the alleged conspiracy’s] unlawful objectives, namely violation of the federal election laws;” and 2) to provide e a good faith defense charge.   The Second Circuit affirmed. The court explained it is not necessary for the government to prove that the defendant was aware of the specific provision of the law that he is charged with violating.” Further, the district court charged the jury that the government needed to prove  Defendant acted willfully, knowingly, and voluntarily. As the district court aptly noted, “to have found that Defendants acted willfully, the jury had to conclude beyond a reasonable doubt that they intentionally did something that the law forbids, the opposite of good faith.” Where, as here, the district court correctly instructed the jury as to knowledge and willfulness and the defendant’s theory was thus “effectively presented elsewhere in the charge,” its refusal to provide a separate “good faith defense” instruction is not reversible error. View "United States v. Kukushkin" on Justia Law

Defendant s pled guilty to (1) using, carrying, and possessing a firearm during an attempted armed robbery of suspected marijuana dealers (“Count One”); and (2) using, carrying, possessing, and discharging a firearm during an assault in aid of racketeering of an individual whom Defendant shot and killed (“Count Two”). Both Counts were violations of 18 U.S.C. Section 924(c)(1)(A), which requires that a defendant use, carry, or possess a firearm “during and in relation to” or “in furtherance of,” as relevant here, a “crime of violence.” To sustain Defendant’s Section 924(c) convictions, each Count must contain a predicate “crime of violence.” Defendant appealed from the judgment sentencing him principally to 360-months’ imprisonment. He argued that neither count contains a predicate “crime of violence” necessary to sustain his Section 924(c) convictions.   The Second Circuit held Defendant’s Section 924(c) conviction on Count One is vacated because attempted Hobbs Act robbery is not a valid predicate crime of violence that would support a conviction under Section 924(c). Defendant’s Section 924(c) conviction on Count Two is sustained because, after applying the modified categorical approach prescribed by the Supreme Court, the court concluded that the predicate crime of violence—VICAR assault with a dangerous weapon premised on a violation of N.Y. Penal Law Section 120.05(2) and perhaps also N.Y. Penal Law Section 120.10(1)—qualifies as a crime of violence that supports a conviction under Section 924(c). View "United States v. Darren Morris" on Justia Law

In 2021, the Court affirmed Defendant’s conviction after a guilty plea in district court. Among other things, The Second Circuit affirmed Defendant’s conviction under 18 U.S.C. Sections 924(c)(1)(A)(i), (ii), (iii), and 2 for using, brandishing, and discharging a firearm during and in relation to an attempted Hobbs Act robbery, as well as his conviction under 18 U.S.C. Sections 924(j)(1) and 2 for murdering a person with a firearm during and in relation to an attempted Hobbs Act robbery. The Supreme Court vacated that judgment and remanded it to the Second Circuit for further consideration in light of its decision in United States v. Taylor, 142 S. Ct. 2015 (2022).   The Second Circuit vacated the section 924(c) conviction and the section 924(j) conviction. The court explained that after Taylor, attempted Hobbs Act robbery no longer qualifies as a crime of violence under section 924(c)(3)(A) and, therefore, cannot serve as a predicate for Defendant’s conviction under section 924(c)(1)(A). Furthermore, because an element of an offense under section 924(j)(1) is that the defendant was “in the course of a violation of [section 924(c)],” attempted Hobbs Act robbery also cannot serve as a predicate for Defendant’s conviction under section 924(j)(1). Moreover, the court wrote it cannot conclude that the purported Rule 11 error made any difference in Defendant’s guilty-plea calculation. View "United States v. Collymore" on Justia Law