September 30, 2014 CJS: Around the Circuit

U.S. Court of Appeals for the Second Circuit

A quarterly case summary digest of recent federal circuit court opinions

by: Erick Marroquin[i]

Dawkins v. Holder, No. 12-4569 (2nd Cir. August 12, 2014)

Petitioner was convicted on four occasions of larceny and he pled guilty on separate occasions. He received a suspended sentence of three years’ imprisonment. He was subsequently charged with removability as an alien convicted of an aggravated felony. Among other things, an aggravated felony is defined as a theft offense for which the term of imprisonment is at least one year. An Immigration Judge found that his charge constituted an aggravated felony and therefore he was ineligible for immigration relief.

Petitioner appealed to the Board of Immigration Appeals (“BIA”). It dismissed the Petitioners claim by determining that the Immigration Judge may consider sentence enhancements for purposes of an aggravated felony under § 1101(a)(43)(G) of the Immigration and Naturalization Act (“INA”). On appeal the Petitioner argues that the requirement in § 1101(a)(43)(G) that she be sentenced to a term of imprisonment of at least one year does not include applicable recidivist sentence enhancements as such enhancements necessarily result from multiple offenses, while the plain language of the statute requires that the term of imprisonment of at least one year result from the commission of a single offense.

Held: Petitioner’s conviction constituted an aggravated felony since the actual sentence imposed includes any recidivist enhancements.

This Court has previously held that under the plain language of the INA, the sentence actually imposed for “term of imprisonment” includes “the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.” United States v. Pacheco, 225 F.3d 148, 153-54 (2d Cir. 2000). Furthermore, the Supreme Court has held that when a defendant is given a higher sentence under a recidivism statute 100% of the punishment is for the current offense; none is for the prior conviction or the defendant's status as a recidivist.  In other words, the phrase “term of imprisonment” includes any applicable recidivist enhancements. The court further reasoned that customary understanding of the criminal justice process requires this interpretation. For example, a judge or attorney would not explain to a criminal defendant that a “maximum term of imprisonment” does not include any possible recidivist enhancements.

USA v. Groysman, No. 13-1031 (2nd Cir. September 3, 2014)

Defendant was charged and convicted of conspiring to commit health care fraud. The government’s main witness was a Special Agent from the Department of Homeland Security (“DHS”), who testified during the first four days of trial. Based on his testimony, the government submitted several charts. The charts were admitted, despite the fact that it was based on what informants told the agent, rather than the agent’s personal knowledge or observations.

On appeal the defendant argues that the government’s main witness was allowed to give testimony that included inadmissible hearsay and opinions, allowing the government to submit charts that were inaccurate and misleading. The government concedes to these errors, but argues that they were harmless and it was not so harmful as to meet the standard for plain error.

Held: Defendant’s conviction should be vacated and remanded for a new trial since the much of the government witness’s testimony was seriously prejudicial.

Under the plain-error analysis a court can correct an error, which must be (1) “error,” (2) that is “plain,” and (3) that affects substantial rights, and if the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Fed. R. Crim. P. 52(b). An error affects substantial rights when there is a “reasonable probability” that the error affected the outcome of the trial. The first two requirements are clearly met since the charts appear to be representations of hearsay testimony offered by the agent. The third factor is also satisfied since the government’s strategy tainted the outcome of the case; the government admitted these errors. Besides the agent’s testimony, the government had no corroborating evidence to support the information provided in the charts. Both the agent’s testimony and charts were central to their strategy; thus it went to the heart of a fair trial. The court concludes that the errors conceded by the government were serious and deeply undermined the fairness and outcome of trial, satisfying the elements of the plain error standard.

United States v. Komasa, No. 1534-cr(L) (2nd Cir. August 28, 2014)

Defendant was charged with multiple counts of fraud in connection to various purchase-money mortgages. On the day the trial began, the government moved to admit the loan files as self-authenticating documents pursuant to Rules 803(6) and 902(11) of the Federal Rules of Evidence. Defendant objected, arguing that the rules requires advance, written notice from the government of intent to use self-authenticating documents. The government argues that defendant was orally informed of its intent. The District Court found that the defendant had actual notice, especially since the government provided defendant with copies of the records and authenticating certificates.

The issue on appeal is whether a written notice requirement can be excused if an objecting party admits to having actual notice and had an opportunity to challenge the evidence.

Held: Defendants had actual notice of the government’s intention to admit the records as self-authenticating satisfying the rule’s purpose.

Under Rule 902(11), the proponent “must give an adverse party reasonable written notice of the intent to offer the record—and must make the record and certification available for inspection—so that the party has a fair opportunity to challenge them.” Here, the defendants admitted that they were in possession of the relevant documents for more than two years and were orally informed of the government’s intent submit them as self-authenticating. Thus, under these circumstances, the defendant could not be surprised by the government’s decision to introduce them at trial. Although, the government should have provided written notice, they were not required to do so, and therefore the district court did not abuse its discretion in admitting the documents as self-authenticating.

United States v. Rios, No. 11-2624-cr (2nd Cir. September 8, 2014)

Defendants plead guilty to one count of conspiracy to distribute and posses with intent to distribute cocaine base. In their plea agreement, defendants stipulated to being responsible for 1.5 kilograms or more of crack. After sentencing, the defendants moved for a reduced sentence, in light of amendments in 2007 and 2011 to the Sentencing Guidelines that lowered the base offense levels applicable to crimes involving certain quantities of cocaine base. Following an evidentiary hearing, the district court denied the defendant’s motion finding the defendant to have distributed at least 8.4 kilograms of crack, resulting in the same base offense level applied under the old guidelines. 

On appeal, the defendants argue that the district court lacked authority to hold an evidentiary hearing to determine the quantity of narcotics involved in the conspiracy and it should have been bound by the plea agreement.

Held: The district court appropriately held an evidentiary hearing and it did not err in making a drug quantity finding that supported not reducing the sentences.

The Court held that the district court has broad discretion in how to adjudicate sentencing, including whether to hold an evidentiary hearing. The district court is free to make findings as long as the findings are not inconsistent with the original sentencing. Here, there were no inconsistent findings as to the quantity of crack distributed by each defendant.  The Defendants pled guilty to distributing at least 1.5 kilograms or more of crack cocaine, and the record did not conclusively establish the amount distributed.  Thus, the district court's finding that the defendants distributed at least 8.4 kilograms of crack, and thus were subject to the same base offense level, was not clearly erroneous.

Luna Torres v. Holder, No. 13-2498 (2nd Cir. August 20, 2014)

Petitioner, a lawful permanent resident of the U.S., was convicted of attempted arson in the third degree under New York Penal Law §§ 110 and 150.10. During removal proceedings, the immigration judge held that his conviction constituted an “aggravated felony,” making him ineligible for relief under cancellation of removal. The term "aggravated felony" applies to an "extensive catalogue of crimes" including violations of federal and state law as well as the law of a foreign country.  The Board of Immigration Appeals (“BIA”) held that an such an offense need not contain a federal jurisdictional element. On appeal the court considers whether a conviction for attempted arson in the third degree constitutes an “aggravated felony,” which requires the court to determine whether the state crime, which lacks a federal jurisdictional element, is an “offense described in” the federal statute governing explosive materials offenses, which does contain such an element.

Held: A conviction for attempted arson in the third degree constitutes an aggravated felony, rendering Petitioner ineligible for cancellation of removal.

The state and federal statutes regarding attempted arson are substantially similar except for one element. Petitioner argues that for a state offense to constitute an aggravated felony, it must be one that is “described in” a federal statute; meaning that the elements of the state and federal crimes must be identical. This court disagrees. Following decisions from the Fifth, Seventh, Eighth, and Ninth Circuits, it seems that “described in” is a broader standard—a state offense does not need to duplicate the federal jurisdictional element. Moreover, this follows the reasoning from BIA decision Matter of Bautista, which reasoned that states rarely include federal jurisdictional language in their criminal statutes. Allowing otherwise would expunge state criminal convictions from the “aggravated felony” definition as well as all foreign offenses, undermining the purpose of the statute.

[i]Erick Marroquin is a recent law graduate from Touro Law School located in Long Island,

New York.  Mr. Marroquin is the Founding Director of Touro’s Iraqi Refugee Assistance Project (IRAP) Chapter, and is currently an Associate at the Law Offices of Eric Horn, practicing immigration law. 


Copyright (US) 2014, by American Bar Association (ABA).  All rights reserved except those specified herein.  The ABA grants permission for portions of this digest to be downloaded and copied for educational, informational, noncommercial purposes, provided that any published portion of the digest includes the legend “Reprinted by permission of the American Bar Association.”

This case summary digest was promulgated by the Criminal Justice Section’s Young Lawyers Committee.  Any interpretations of the statutes, regulations, or other law cited; or regarding the courts’ opinions as to the legal issues addressed, are those of the authors and do not necessarily represent the official views of the American Bar Association.

The information provided in this digest is solely for educational and informational purposes, and does not constitute legal advice.  While every effort is being made to ensure that the case law is correct and current, this digest is published on a quarterly basis.  Because the areas of the law being examined are complex, voluminous, and constantly changing, users are cautioned to research and verify the accuracy of the summarized information independently and through an official source.  Links to the official webpage containing the original opinions for each federal circuit are provided with each summary.  Also, the status of the law as to any particular issue may vary from one circuit to the next.  Consequently, users are further cautioned to cross-reference a circuit’s holding with the case law from the user’s own jurisdiction.  The ABA takes no responsibility for any harm resulting from reliance on this digest.


Copyright (US) 2014, by American Bar Association (ABA).  All rights reserved except those specified herein.  The ABA grants permission for portions of this digest to be downloaded and copied for educational, informational, noncommercial purposes, provided that any published portion of the digest includes the legend “Reprinted by permission of the American Bar Association.”

This case summary digest was promulgated by the Criminal Justice Section’s Young Lawyers Committee.  Any interpretations of the statutes, regulations, or other law cited; or regarding the courts’ opinions as to the legal issues addressed, are those of the authors and do not necessarily represent the official views of the American Bar Association.

The information provided in this digest is solely for educational and informational purposes, and does not constitute legal advice.  While every effort is being made to ensure that the case law is correct and current, this digest is published on a quarterly basis.  Because the areas of the law being examined are complex, voluminous, and constantly changing, users are cautioned to research and verify the accuracy of the summarized information independently and through an official source.  Links to the official webpage containing the original opinions for each federal circuit are provided with each summary.  Also, the status of the law as to any particular issue may vary from one circuit to the next.  Consequently, users are further cautioned to cross-reference a circuit’s holding with the case law from the user’s own jurisdiction.  The ABA takes no responsibility for any harm resulting from reliance on this digest.