CLICK TO READ United States v. Michael Hagood, Docket # 22-588

Around 1:00 a.m. on October 14, 2020, New York City Police Department (“NYPD”) officers drove by Defendant Michael Hagood near a New York City Housing Authority (“NYCHA”) complex in the Bronx. Hagood was wearing a fanny pack across his chest and standing next to a double-parked car. According to the officers, Hagood was visibly nervous when he saw them, and one officer noticed that Hagood’s fanny pack appeared to contain a bulging object with a straight line on top—the same shape as a handgun. The officers stopped and frisked Hagood and found a loaded semi-automatic pistol in the fanny pack.

Hagood was arrested and charged with a violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2): possessing a firearm after having been convicted of a felony. He moved to suppress the firearm, and after a two-day hearing, the district court (Engelmayer, J.) denied the motion.  The majority of the Second Circuit panel affirmed, finding that the totality of circumstances in this case—including the officer’s observations of the fanny pack (as informed by his experience recovering firearms from fanny packs), Hagood’s unusual manner of wearing the fanny pack, his nervous appearance, and the late hour in a high-crime neighborhood—established reasonable suspicion.

Judge Guido Calabresi dissented in a well-reasoned dissenting opinion.  Judge Calabresi wrote that it was almost impossible for the police officer to drive by Hagood, late at night, from 30 feet away, and in 2-3 seconds see the outline of a gun in the fanny pack around his chest.  He criticized the “Herculean” efforts of the majority to justify this suspicionless stop and warrantless search.  The dissent is well worth the read.

CLICK TO READ United States v. Michael Avenatti, Docket # 21-1778(L), 22-351(CON)

This is an appeal by Michael Avenatti, the former attorney for adult film actress Stormy Daniels, who claimed she had an affair with former President Donald Trump.  Avenatti was convicted after a jury trial of transmitting extortionate communications in interstate commerce to sportswear leader Nike, see 18 U.S.C. § 875(d); attempted Hobbs Act extortion of Nike, and honest-services wire fraud of the client whom defendant was purportedly representing in negotiations with Nike.  He was sentenced to 30 months imprisonment and ordered to pay $259,800.50 in restitution under the Mandatory Victims Restitution Act of 1996.

The crimes of conviction took place in March 2019 while Avenatti was representing Los Angeles youth sports coach Gary Franklin in negotiations with sportswear leader Nike. Critical to the two extortion crimes was Avenatti’s threat to cause Nike reputational and financial injury if it did not pay him millions of dollars. Critical to the fraud crime was a scheme to deprive Franklin of Avenatti’s honest legal services in negotiations with Nike by (unbeknownst to Franklin) conditioning a settlement with Franklin on Avenatti’s own receipt of a solicited multi-million-dollar bribe.  The Second Circuit found that his repeated threats to harm the company was sufficient evidence for the jury’s verdict.

CLICK TO READ United States v. Joseph Percoco, Steven Aiello, Joseph Gerardi, Louis Ciminelli, Alain Kaloyeros, Docket # 18-2990(L), 19-1272(Con)

Appeal of a conviction after jury trial of two counts of conspiracy to commit honest-services wire fraud and one count of solicitation of bribes and gratuities.  After initially losing his appeal in the Second Circuit, Percoco petitioned the Supreme Court for certiorari to review whether a private citizen who has informal political or other influence over governmental decision-making can be convicted of honest-services fraud. The Supreme Court reversed, finding that the District Court’s jury instructions were clearly erroneous, and remanded for further consideration by the Second Circuit.

On remand, the Second Circuit affirmed two convictions but vacated the conviction for honest-services fraud.  The case was remanded for dismissal of the honest-services fraud charge.