Second Circuit

The Second Circuit vacated a defendant’s $10,000 forfeiture order because § 981(a)(1)(C) reaches only property the defendant actually obtained, and the defendant, who was a getaway driver for a robbery, never obtained his share of the proceeds from the robbery.

The Second Circuit affirmed convictions of a veterinarian and salesperson for manufacturing and distributing undetectable performance-enhancing drugs to racehorse trainers, rejecting arguments that the FDCA’s enhanced penalty provision applies only to fraud against consumers. The court also held that FDCA seizure provisions do not authorize criminal forfeiture and vacated the $25 million restitution and forfeiture orders.

The Second Circuit affirmed a conviction for receiving firearms purchased out of state, rejecting a Second Amendment challenge to 18 U.S.C. § 922(a)(3), which prohibits the interstate transport of firearms. The Court held the statute regulates the mode of acquiring firearms and does not meaningfully burden the right to keep and bear arms, and, in any event, it is consistent with the Nation’s historical tradition under Bruen.

The Second Circuit affirmed a jury verdict finding a medical billing company owner guilty of health care fraud, conspiracy, wire fraud, and aggravated identity theft, but vacated his 144-month sentence, $63.38 million forfeiture judgment, and $336.99 million restitution award. The Court held the district court procedurally erred by lengthening the prison term based on the prospect of First Step Act earned-time credits and RDAP benefits, misapplied two Guidelines enhancements without adequate findings, and used flawed methodologies for forfeiture and restitution.

The Second Circuit affirmed a district court’s order acquitting a defendant of violations of the Foreign Corrupt Practices Act, holding that the defendant, who worked for a U.K. subsidiary of a U.S. company involved in bribing Indonesian officials, was not an “agent” or employee” of the U.S. company under common law. The Court also held that the defendant’s speedy trial rights were not violated by a 6-year delay and that the trial court did not err in instructing the jury on withdrawal from a conspiracy and proving venue in a case involving money transfers through multiple states.

Joining seven other circuits, the Second Circuit held that Hobbs Act robbery is not a “crime of violence” under the Guidelines for Career Offender, USSG 4B1.2(a), because the offense can be applied to conduct involving only violence against property, not against other people. The Court also upheld the district court’s finding that Application Note 1 to 4B1.2, which states that conspiracy to commit a crime of violence is a “crime of violence,” was not binding because the note is inconsistent with the text of 4B1.2 itself, which does not include conspiracy as one of the predicate offenses for career offender.

The Second Circuit reversed a defendant’s conviction after holding that the district court should have granted the defendant’s motions to dismiss, which were based on the government’s violation of his right to a speedy trial. The Government caused a delay of over three and a half years, and the district court erroneously excluded time from the speedy trial calculations merely because the case was “complex,” which was insufficient.

The Second Circuit held that a district court considering a motion for compassionate release can reduce a defendant’s sentence or release them notwithstanding that the defendant was sentenced to a mandatory minimum term of imprisonment. The Court affirmed denial of the defendant’s motion, however, since the district court did not base its denial on the defendant’s mandatory minimum sentence and otherwise did not abuse its discretion.

The Second Circuit affirmed a district court’s order denying the defendant’s motion to withdraw his plea. The defendant had argued that the district court misstated the applicable mandatory minimum term of supervised release. The Second Circuit affirmed but noted the parties had incorrectly stated that the defendant bore the burden of persuasion to show the Rule 11 error had affected his substantial rights. Rather, it was the Government’s burden to show such an error was harmless.

The Second Circuit vacated a $2.3 million restitution order against a defendant convicted of securities fraud. The Court held that most of the alleged victims’ losses came from purchasing shares of a sham company outside of a public market, in a private placement. Since the private placement was arranged by the defendant’s co-conspirators and there was no evidence that the defendant was involved in planning or executing the private placement, the defendant could not be held accountable for those losses as the proximate or direct cause.