Justia Criminal Law Opinion Summaries

Defendant, a member of a gang known as MBG, was convicted after a jury trial of a racketeering conspiracy, committing a violent crime in aid of racketeering (VICAR) – namely, a shooting of rival gang members, and using a firearm in furtherance of the racketeering conspiracy and the VICAR offense. The district court granted defendant's motion for judgment of acquittal on the VICAR and firearm counts on sufficiency of the evidence grounds and denied it as to the racketeering conspiracy count. Both the government and defendant appealed.The Second Circuit treated defendant's notice of appeal as an appeal from the judgment of conviction on the racketeering conspiracy count. The court held that the evidence was sufficient to support the jury's verdict in its entirety and that the district court erred to the extent that it granted defendant's motion. Accordingly, the court affirmed so much of the district court's order as denied defendant's motion as to the racketeering conspiracy count, reversed so much of it as granted that motion, and vacated the judgment below with instructions to the district court to reinstate the jury verdict finding defendant guilty on the VICAR and firearm counts and to resentence defendant. View "United States v. Howard" on Justia Law

Perez was born in rural Mexico in 1989 and entered the U.S. without authorization at age 13. He has two children, who were born in the U.S., whom he visits and helps support financially. In July 2016, Perez was attending a barbeque when a violent fight broke out. Several young men wielding bats and machetes were attacking a member of a rival gang. Perez borrowed a firearm from an acquaintance and fired several shots into the air. Hearing the gunshots, the young men scattered, and Perez returned to the barbeque and returned the gun to his acquaintance. Days later, the NYPD obtained a video recording of the incident, identified Perez, and identified the firearm.Perez was charged with possession of a firearm and ammunition while being an alien illegally and unlawfully in the U.S., 18 U.S.C. 922(g)(5). Perez unsuccessfully moved to dismiss the indictment, arguing that section 922(g)(5) on its face violated the Second Amendment by erecting a categorical bar on the possession of firearms by illegal or unlawful aliens. The Second Circuit affirmed. Assuming without deciding that, even as an undocumented alien, Perez is entitled to Second Amendment protection, 18 U.S.C. 922(g)(5), as applied to Perez, withstands intermediate scrutiny. View "United States v. Perez" on Justia Law

McCray pleaded guilty to possession with intent to distribute and distribution of fentanyl, 21 U.S.C. 841(a)(1) and (b)(1)(C), and one of two counts of possession with intent to distribute and distribution of 10 grams or more of butyryl fentanyl, 21 U.S.C. 841(a)(1) and (b)(1)(B).The Second Circuit affirmed. A substance can be an “analogue” of fentanyl for the purposes of 21 U.S.C. 841(b)(1)(B)(vi) even if it is not a “controlled substance analogue” under 21 U.S.C. 802(32). Section 841(b)(1)(B)(vi) provides fair notice that dealing in 10 grams or more of a substance that is an “analogue” of fentanyl under the ordinary meaning of the word, even if that substance is not a “controlled substance analogue,” is subject to the subsection’s enhanced penalty. The district court did not clearly err in concluding that an earlier sale was relevant to McCray’s offense conduct or in finding that the victim’s death resulted from the sale. The court did not abuse its discretion when departing upwards from the Guidelines range by 30 months based on the weight of the evidence that McCray sold the fentanyl that killed the victim. The district court appropriately applied the preponderance of the evidence standard when making factual findings at sentencing. View "United States v. McCray" on Justia Law

Rosario pled guilty to three offenses stemming from his sexual exploitation of a minor. As part of Rosario’s sentence, the district court ordered Rosario to pay a $5,000 special assessment under the Justice for Victims of Trafficking Act of 2015, 18 U.S.C. 3014(a), which requires courts tp impose the assessment on all “non-indigent” persons convicted of specified offenses.The Second Circuit affirmed, rejecting Rosario’s argument that the district court erred by considering his future earning capacity in finding him to be “non-indigent.” The court had considered Rosario’s health, outstanding debts and current assets, employment while incarcerated, “extensive prior work history,” and “transferable skills” in “basic plumbing, painting, flooring, and tile work” while noting “that [Rosario’s] felony convictions and sex-offender status will likely have an adverse effect on his employability.” The ordinary meaning of “indigent” encompasses not only a lack of present resources but also includes a forward-looking assessment of the defendant’s “means” or ability to pay. This understanding is reinforced by the statutory scheme, which provides defendants 20 years after their release to make payment. It is also consistent with precedent and the view of all six other circuits that have addressed the issue. View "United States v. Rosario" on Justia Law

The Second Circuit affirmed defendant's conviction and sentence for providing and conspiring to provide material support to Hizballah, in violation of 18 U.S.C. 2339B (Counts One and Two); receiving and conspiring to receive military-type training from Hizballah, in violation of 18 U.S.C. 2339D (Counts Three and Four); contributing and conspiring to contribute services to Hizballah, in violation of 50 U.S.C. 1705(a) (Counts Six and Seven); and unlawful procurement of citizenship or naturalization to facilitate an act of terrorism, in violation of 18 U.S.C. 1425(a) (Count Eight).The court concluded that the district court did not err in denying defendant's motion to suppress confessions he made during a series of interviews with the FBI; in denying his motion claiming ineffective assistance of counsel during the 2017 interviews because his right to counsel had not yet attached; and in declining to provide defendant's requested jury instructions. The court also concluded that the evidence was sufficient to support defendant's conviction where the government presented evidence that corroborated defendant's statements to the FBI agents, including data on his laptop, his internet search history, and his travel history. Finally, the court held that defendant's 480 month sentence was procedurally and substantively reasonable where the district court considered the 18 U.S.C. 3553(a) factors, including the need to avoid unwarranted sentencing disparities. View "United States v. Kourani" on Justia Law

Defendant appealed her conviction for assaulting a federal officer stemming from a violent altercation with a United States Border Patrol Agent. Defendant argued that the district court erred by providing a written response to a jury note without affording the parties an opportunity to offer input on the response, and by orally instructing the jury to continue deliberations without sufficient cautions and guidance. The court concluded that the district court erred in both respects but that neither error rose to the level of plain error.In regard to defendant's ineffective assistance of counsel claim, the court concluded that the crime of assaulting a federal officer in violation of 18 U.S.C. 111(a)(1) and (b) is a general intent crime, and therefore counsel's performance was not deficient for failing to offer evidence showing a lack of specific intent. Nevertheless, the court concluded that further fact-finding is necessary and that the district court must conduct a hearing regarding certain decisions of defendant's counsel, including the decision not to offer expert testimony regarding her mental health condition with respect to an insanity defense. Accordingly, the court remanded the ineffective assistance of counsel claim. View "United States v. Melhuish" on Justia Law

In No. 20-1762, the Second Circuit denied the government's motion to dismiss defendant's appeal from the district court's denial of his motion under Federal Rule of Criminal Procedure to correct errors in his judgment of conviction (First Order). The court concluded that because the district court entered the Second Order while defendant's appeal challenging the First Order was pending, the district court lacked authority to enter the Second Order.In Nos. 20-3286 and 20-3276, which have been consolidated with No. 20-1762, defendant appeals from the Second Order (No. 20-3286) and appeals from an order denying his motion for compassionate release under the First Step Act (No. 20-3276). Because the Second Order indicates the district court's desire to correct the judgment of conviction, in Nos. 20-1762 and 20-3286 the court vacated the First Order and the Second Order, respectively; and remanded to the district court, restoring its authority to enter whatever amended judgment it finds appropriate to correct the operative judgment's clerical errors.The court directed the Clerk of Court to unconsolidate No. 20-3276, which challenges the denial of defendant's motion for compassionate release, and to recalendar that appeal for a merits panel or a motions panel, as appropriate, for resolution in the ordinary course, and to consider consolidating No. 20-3276 with a new First Step Act appeal filed by defendant, No. 21-1277. View "United States v. Jacques" on Justia Law

The Second Circuit affirmed Defendants' Khalupsky and Korchevsky convictions for conspiracy to commit wire fraud, conspiracy to commit securities fraud and computer intrusions, securities fraud, and conspiracy to commit money laundering. Defendants' convictions stemmed from their use of information from stolen, pre-publication press releases to execute advantageous securities trades. Defendants used intermediaries to pay hackers for the stolen press releases.The court concluded that the evidence was sufficient to establish Korchevsky's conspiracy with Khalupsky, as well as sufficient evidence to support the securities fraud convictions; venue was proper in the Eastern District of New York for the securities fraud counts where it was foreseeable that defendants' actions constituting securities fraud would take place there; there was no constructive amendment or prejudicial variance of the superseding indictment; and the district court did not abuse its discretion in responding to a jury request during deliberations. The court also concluded that there is no merit to defendants' challenge to the district court's decision to charge the jury that conscious avoidance can satisfy the knowledge requirement. Nor is there merit to their claim challenging the particular instruction given. View "United States v. Korchevsky" on Justia Law

Defendant was convicted of marijuana conspiracy but acquitted of cocaine and cocaine base conspiracy and a related firearms charge. The jury was unable to reach a verdict as to the charge of conspiracy under the Racketeer Influenced and Corrupt Organizations Act (RICO). After a second jury trial, defendant was convicted of the RICO conspiracy count and sentenced by the district court principally to 360 months' imprisonment for both the marijuana conspiracy and RICO conspiracy counts of conviction.The Second Circuit affirmed, concluding that the district court's decision to admit evidence of defendant's involvement in cocaine or cocaine base trafficking during his retrial on the RICO conspiracy charge did not violate the prohibition against double jeopardy. The court also concluded that the district court did not err by denying defendant's motion to disqualify his codefendant's counsel and instead severe defendant's trial. The court considered defendant's remaining arguments and concluded that they lacked merit. View "United States v. Hicks" on Justia Law

The Second Circuit affirmed defendants' convictions for multiple drug- and gun-related counts, concluding that the evidence was sufficient to support their convictions. The court rejected defendants' claims of evidentiary errors. However, the court vacated Defendant Willis's sentence because the district court clearly erred in its factfinding regarding jointly undertaken criminal activity and failed to rule whether his sentence would run concurrently to an undischarged state sentence. The court remanded for resentencing and clarification. View "United States v. Willis" on Justia Law