Ed Sapone’s DECISIONS OF THE WEEK -September 5, 2019

| Sep 5, 2019 | Ed Sapone’s Decisions of the Week

This week the Second Circuit was constrained to vacate the convictions it had affirmed in Barrett. It also affirmed a suppression ruling despite a prolonged traffic stop in Wallace. Judge Pooler authored a rare dissent. The New York State appellate courts released only a handful of decisions, none of them of interest, as they returned from their summer recess.

Second Circuit

On Friday, following the Supreme Court’s vacatur in light of its decision in United States v. Davis, 139 S.Ct. 2319 (2019), the Circuit published its decision in United States v. Barrett. The Circuit vacated defendant’s conviction for using firearms during the commission of a Hobbs Act Robbery conspiracy, because a HAR conspiracy is not a §924(c) crime of violence.

By way of background, in 2018, the Circuit affirmed defendant’s SDNY conviction after trial before Judge Richard J. Sullivan, for multiple counts of conspiratorial and substantive HAR and related counts of using a firearm during, and in relation to, the robbery crimes. 903 F.3d 166 (2d Cir. 2018).

The Supreme Court vacated that judgment and remanded for further consideration in light of its decision in Davis, which held that a crime could not be identified as a crime of violence under §924(c)—even by a trial jury—on a case‐specific basis. The decision must be made categorically. The Circuit’s prior decision in Barrett had relied on a case-specific approach to recognize the charged HAR conspiracy as a crime of violence under §924(c)(3)(B). The Circuit concluded that SCOTUS’s unequivocal rejection of a case‐specific approach to § 924(c)(3)(B) precluded any further reliance on proof of specific acts of violence to identify that offense as a crime of violence predicate under §924(c)(3)(B).

The Circuit also addressed the fact that its original Barrett affirmance was based on an alternate determination that HAR conspiracy could be categorically identified as a crime of violence, thereby avoiding the vagueness concerns of the ordinary case form of categorical analysis rejected by the Supreme Court. The Circuit’s prior elements‐based conclusion depended on both §924(c)(3)(A) and §924(c)(3)(B). The Circuit had concluded that the elements of a conspiracy’s object crime establish it as a categorical crime of violence under

  • 924(c)(3)(A). The Circuit found that argument no longer tenable too, because, if there was anything that Davis made clear, it was that the Supreme Court’s “conviction that the substantially similar residual clause definitions for a violent crime in ACCA, in §16(b), and in §924(c)(3)(B) are unconstitutionally vague, and its aversion to new arguments that attempt to avoid that conclusion.”

The Circuit thus concluded that neither path allowed for a finding that HAR conspiracy was a crime of violence under §924(c), and remanded for resentencing on the remaining counts.

The Circuit’s decision can be found here.

On Tuesday, in United States v. Wallace, the Circuit, in a 2-1 split decision (Senior Circuit Judge Ralph K. Winter and SDNY Judge Ronnie Abrams sitting by designation) affirmed defendant’s SDNY convictions for possessing a firearm and ammunition after having been previously convicted of three serious drug offenses. The Circuit rejected defendant’s contention that Judge Katherine B. Forrest had erroneously denied his motion to suppress the firearm on the grounds that it was discovered as the result of an unconstitutionally prolonged traffic stop.

By way of background, at approximately 7:20 pm, officers driving a patrol car near Webster Avenue and 173rd Street in the Bronx observed a defective brake light on the car in front of them. They conducted a traffic stop, and two officers approached while one remained behind. As they approached, they saw scratches and dents all around the car and a broken windshield. When the officers asked the driver for his driver’s license and registration, he provided his license, but stated that he did not have a copy of his registration. They observed scratch marks indicating that someone had pried open the door to forcibly enter. They also saw that the registration sticker and inspection certificate appeared to have been peeled off and taped back onto the windshield. The damage to the stickers also partially concealed the car’s VIN number. The officers suspected that the car had been stolen, and decided to check to see if VIN numbers elsewhere in the vehicle matched.

At approximately 7:22 p.m., one of the officers at the scene searched defendant’s name through law enforcement databases. It returned a report that displayed, among other information, defendant’s driver’s license, license plate, and VIN. The information in the report matched the VIN on the dashboard, defendant’s driver’s license, and the license plate that the officers observed at the scene.

One officer asked defendant if he could open the driver’s side door. Defendant consented and, upon opening the car door, the officers observed that the federal VIN label—required to be in that location—was missing. After questioning defendant about the missing federal label, the officers arrested defendant for violating New York Penal Law § 170.70 which prohibits “knowingly possess[ing] . . . a vehicle or vehicle part from which a vehicle

identification number label, sticker, or plate has been removed[.]” The arrest occurred at approximately 7:29 p.m.

A subsequent inventory search uncovered a handgun under the car’s hood inside a zippered bag.

Defendant argued on appeal that the traffic stop that led to the discovery of the gun was unconstitutionally prolonged under the standards set forth by the Supreme Court in Rodriguez v. United States, 135 S.Ct. 1609 (2015). Rodriguez held that “a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures.” Authority for a traffic stop ends when the tasks tied to the traffic infraction should reasonably have been completed. A traffic stop may be extended beyond the point of completing its mission if an officer develops a reasonable suspicion of criminal activity.

Here, the Circuit found that the officers reasonably suspected the car to have been stolen based upon their observation of the scratches and apparently doctored registration sticker. The Circuit held that the fact that a computer search revealed that the car was owned by defendant and bore the appropriate VIN number, did not “necessarily dispel[] the officers’ otherwise reasonable suspicion” that the car had been stolen, because the thief could have performed a “VIN swap,” switching the VIN stickers in the car.

Judge Rosemary Pooler would have held that, once the officers learned that the vehicle belonged to defendant, they should have issued him a traffic citation for a defective brake light and sent him on his way.

The Circuit’s decision can be found here.

On Wednesday, in United States v. Faibish, in a summary order, the Circuit affirmed defendant’s EDNY convictions for conspiracy to commit securities and bank fraud and other related offenses. The Circuit rejected defendant’s contentions that Judge Eric Vitaliano’s restitution order was improperly calculated.

At sentencing, after hearing from both parties, the district court ordered, among other things, restitution in the amount of $31,510,887. As for Signature Bank, one of the identifiable victims, the court ordered defendant to pay $21,431,890 in restitution. With respect to the Synergy Fiduciary, another victim, defendant was ordered to pay $9,594,729 in restitution. On appeal, defendant argued that Signature Bank should not receive any restitution, or at least not full, because its banking practices contributed to its losses and that the Synergy Fiduciary was not harmed to the extent that the district court ordered restitution.

As for Signature Bank, defendant argued that the bank was responsible for its own losses because of its practice of allowing an “irresponsible and astonishing fourteen day float time.” The Circuit found that, regardless of whether the bank’s negligent policies may have made defendant’s wrongdoing easier, it was defendant’s wrongful acts that created the losses.

Defendant argued that the amount of restitution owed to the Synergy Fiduciary was overinflated because that amount was calculated without deducting money the fiduciary had received to offset its losses and included unpaid loans that pre-dated the period of criminal activity.

The Circuit disagreed. It found that while the Synergy Fiduciary initially sought more than $15 million in restitution, the district court correctly excluded items that preceded the criminal activity period, and only included losses sustained because of defendant’s criminal conduct.

The Circuit’s decision can be found here.

Warm regards, Edward V. Sapone Sapone & Petrillo, LLP One Penn Plaza/ 53rd Floor/ 23rd Floor New York, NY 10038

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