September 2010

United States v. Folkes, no. 09-3389 (Sept. 29, 2010) (per curiam). Following his guilty plea to illegal reentry and aggravated identity theft, the Defendant appealed his sentence and argued that the application of a crime-of-violence enhancement was procedural error. On plain error review, the Court agreed. The Court noted at the outset that “crime of violence” is defined differently for purposes of illegal reentry (U.S.S.G. § 2L1.2) than for purposes of the career offender provisions. Applying the categorical approach, the Court held that New York’s third-degree burglary statute—which in United States v. Brown, 514 F.3d 256 (2d Cir. 2008), it had previously determined was a crime of violence based on the different residual clause in the career offender guidelines—was not a crime of violence for purposes of the illegal reentry guidelines. The Court based this conclusion on the fact that the New York statute did not restrict the offense to burglary of a dwelling and because it did not necessarily involve the use, attempted use, or threatened use of physical force against the person of another. Nor could the Defendant’s third-degree possession of a firearm offense qualify as a crime of violence since the Second Circuit had previously determined, in United States v. Gamez, 577 F.3d 394 (2d Cir. 2009), that second-degree criminal possession was not a crime of violence for purposes of the illegal reentry guidelines.

United States v. Mazza-Alaluf, no. 09-3940 (Sept. 22, 2010). After a bench trial, the defendant was convicted of conspiring to operate (and in fact operating) an unlicensed money transmitting business and was sentenced to 42 months imprisonment. On appeal, the Court rejected his claim that the government was required to prove he operated a “domestic financial institution” as defined in other parts of the U.S. Code. Because of the many millions of dollars transferred to and from his accounts in several states, the Court also rejected the defendant’s claim that his was a foreign business and not a Money Transmitting Business subject to state registration requirements. Finally, the Court rejected the defendant’s claim that his sentence was unreasonable because—in an unrelated case—a defendant was sentenced to one year of probation and because he would not have faced prosecution if he had operated in a state without a registration requirement.

United States v. Ahders, no. 09-4093 (Sept. 16, 2010 (amended Sept. 21, 2010)) (per curiam). Defendant pled guilty to one count of producing child pornography and was sentenced to 580 months imprisonment. On appeal, the Court rejected his claim that his abuse of two of the minors should not be grouped and combined with the offense of conviction because there was no question that the conduct in question occurred contemporaneously with the offense of conviction.

With respect to the four-level enhancement for possessing material portraying sadistic or masochistic conduct, the Court remanded for resentencing after determining there was an inadequate factual basis in the record to support the enhancement. As to the most likely basis for the enhancement, the Court explained that on remand, the district court would have to make findings that demonstrated the mere possession of the images was relevant conduct to the production-of-child-pornography offense. Although the Court thought no factor was determinative, it suggested that factors such as use of the same computer to produce the child pornography and possess the sadistic images, similarity between the images produced and possessed, and temporal proximity between the images produced and possessed might weigh in favor of a sadistic or masochistic conduct enhancement.

United States v. Paris, no. 08-5071 (Sept. 17, 2010). The Defendant was convicted at trial of various sex trafficking crimes. On appeal, he argued that the district court erred when it prohibited his use of peremptory challenges to strike jurors on the basis of race and when it ruled that he had not made out a prima facie showing of a Batson violation based on the fact that the Government’s first four peremptory challenges were against men.

Although neither the Supreme Court nor the Second Circuit had considered whether a criminal defendant may exercise peremptory challenges to strike jurors on the basis of gender, the Court concluded it was not permissible because: “the principles set forth by the Supreme Court in Batson, McCollum, and J.E.B. apply with equal force to the exercise of peremptory challenges by a defendant in a criminal action”; the Supreme Court (in J.E.B. v. Alabama) had already rejected the defendant’s arguments as to the distinctions between race and gender for purposes of a Batson analysis; and that the Sixth, Eighth, and Ninth Circuits had reached the same conclusions, as had the Supreme Court in dictum. Slip. Op. at 14-16.

With respect to the defendant’s claim that the Government’s use of its first four peremptory challenges to strike men established a prima facie Batson claim, the Second Circuit first observed that it had not previously addressed the appropriate standard of review for the first prong of Batson. After concluding that such a decision is subject to abuse of discretion review, the Second Circuit noted that while a pattern of peremptory challenges can give rise to an inference of impermissible discrimination, the jury pool was more than half men at the peremptory challenge phase; the percentage of men was then increased when the defendant used seven of his first eight challenges to strike women; and, unlike the defendant, the Government did not announce its intention to strike jurors on the basis of gender.

The following is a brief digest of Second Circuit decisions issued September 1-10, 2010.

Opinions: