Author Archive | Edward S. Zas

Wednesday, November 13th, 2013

District Court Abused Discretion in Awarding Restitution for Unsubstantiated Losses

United States v. Simmons, No. 12-2187-cr (2d Cir. Nov. 13, 2013) (Katzmann, Leval, and Pooler) (summary order), available here

Convicted of conspiracy to commit bank and wire fraud, the defendant was sentenced to 41 months of imprisonment, $1.3 million in forfeiture, and $1.3 million in restitution to Siren Management Company and Community Preservation Corporation (“CPC”). On appeal, the defendant challenged only the restitution order.
By summary order, the Circuit held that Siren was properly found to be a “victim” for restitution purposes because it was directly harmed by the defendant’s criminal conduct in the course of the fraudulent scheme. The Circuit held that CPC was also a victim for restitution purposes, not a co-conspirator, as the defendant claimed.  
The Circuit agreed with the defendant, however, that the district court abused its discretion by including in Siren’s loss amount more than $250,000 based solely on an unsworn letter from …
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Defendant Not Eligible for a Sentence Reduction Under Amendment 599

United States v. Heatley (Jackson), No. 12-2812 (2d Cir. Nov. 13, 2013) (Newman, Hall, and Lynch) (summary order), available here

In this summary order, the Circuit agreed with the district court that the defendant was not eligible for a sentence reduction under 18 U.S.C. 3582(c)(2) and Amendment 599 to the Sentencing Guidelines.
Amendment 599 provides that “when a defendant is convicted of both an underlying offense and a[n] [18 U.S.C.] sec. 924(c) offense for using a firearm in connection with the underlying offense, his sentence on the underlying offense cannot be enhanced for the possession or use of a firearm.”
The defendant could not benefit from this provision because the district court did not apply any enhancements for using or possessing a firearm in connection with his sentence for the count of conspiracy to commit murder. Moreover, even if the court had applied a firearms enhancement to the conspiracy …
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It’s Not the Second Circuit, But . . .

United States v. LaDeau, No. 12-6611 (6th Cir. Nov. 4, 2013) (Rogers, Griffin, and Donald), available here 

In this noteworthy ruling, the Sixth Circuit upheld a district court’s decision to dismiss an indictment in a child pornography downloading case based on prosecutorial vindictiveness.  
The defendant was originally charged with one count of possessing child pornography (18 U.S.C. 2252A(a)(5)(A)), which carried a statutory sentencing range of zero to ten years of imprisonment. After the district court granted the defendant’s motion to suppress, the government secured a superseding indictment charging the defendant with a conspiracy offense based on evidence that had been in the government’s possession since before the initial indictment. But rather than charging the defendant in the superseding indictment with conspiracy to possess child pornography, the government charged him instead with conspiracy to receive child pornography – a crime that subjected the defendant to a five-to-twenty-year prison …
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Tuesday, November 12th, 2013

Circuit Vacates Forfeiture Order for Plain Error

United States v. Lopez, No. 12-1019-cr (2d Cir. Nov. 12, 2013) (Livingston, Lynch, and Droney) (summary order), available here 

Federal Rule of Criminal Procedure 32.2(b)(2)(C) permits a district judge to enter a general forfeiture order if “before sentencing, the court cannot . . . calculate the total amount of the money judgment.” The rule directs district judges entering such an order to “(i) list[] any identified property; (ii) describe[] other property in general terms; and (iii) state[] that the order will be amended under Rule 32.2(e)(1) when . . . the amount of the money judgment has been calculated.”
Here, the defendant was sentenced to 12 years in prison for conspiracy to distribute drugs. The district court also ordered that he forfeit “[a]ny proceeds gained as a result of [his] criminal activity.” No objection was raised to this forfeiture order in the district court. Nevertheless, the Circuit found …
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District Court Failed to Make Sufficient Findings to Support Enhancement for Distributing Child Pornography

United States v. Reed, No. 11-4820-cr (2d Cir. Nov. 12, 2013) (Winter, Pooler, and Chin) (summary order), available here

This summary order holds that the district court’s factual findings were not adequate to support a two-level enhancement under U.S.S.G. 2G2.2(b)(3)(F) for distributing child pornography.
Reed was convicted of one count of receiving child pornography and one count of possessing child pornography. He was sentenced to concurrent terms of ten years of imprisonment on each count.
At sentencing, the district court found that more than 600 files of child pornography were located in “peer-to-peer” sharing folders on the defendant’s computer, and that these files were “being offered for sharing.” On this basis, the court enhanced the defendant’s offense level by two levels under U.S.S.G. 
2G2.2(b)(3)(F), which applies if the offense involved “distribution” of child pornography.
The Circuit held that, under United States v. Reingold, 731 F.3d 204, 229 (2d …
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Friday, November 8th, 2013

Circuit Directs District Court to Reconsider Request for Transfer of Supervision

United States v. Murdock, No. 13-3236 (2d Cir. Nov. 8, 2013) (Katzmann, Kearse, and Wesley), available here

This decision concerns a district court’s authority to modify a defendant’s conditions of supervised release to require that supervised release be served in another district.

In 2012, Murdock was convicted in the District of Vermont of interstate transportation of stolen vehicles. He was sentenced to 30 months of imprisonment, to be followed by a three-year term of supervised release. Murdock’s only connection with Vermont was his acquisition in Vermont of the vehicles that were the subject of his conviction. He was born and raised in the Eastern District of Michigan, where he had substantial family and business ties.

As his release date approached, Murdock asked the district court to modify his conditions of supervised release to require that his supervised release be served in the Eastern District of Michigan. Officials in Michigan …

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Thursday, November 7th, 2013

Anonymous Tips Did Not Create Reasonable Suspicion

United States v. Freeman, No. 12-2233 (2d Cir. Nov. 7, 2013) (Pooler, Wesley, and Droney) (as amended), available here

In this important Fourth Amendment decision — required reading for anyone dealing with a search or seizure based on an anonymous tip — the Court held that the police, acting primarily on a pair of anonymous 911 calls from the same caller, lacked reasonable suspicion to stop the defendant. Accordingly, the Court reversed the district court’s decision denying a motion to suppress and vacated the defendant’s conviction for illegally possessing a firearm. Judge Wesley dissented. [Disclosure: the Federal Defenders of New York represents Mr. Freeman.]
These were the facts: On April 27, 2011, around 1:40 a.m, the police responded to two 911 calls from the same caller. The initial call reported that a “Hispanic male, wearing a black hat and a white t-shirt had a gun, near the …
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Wednesday, November 6th, 2013

District Court Erred in Denying Motion to Reduce Sentence

In United States v. Bethea, No. 12-961-cr (2d Cir. Oct. 13, 2013) (Winter, Jacobs, and Straub) (per curiam), available here, the Circuit vacated the district court’s decision denying the defendant’s motion to reduce his sentence under 18 U.S.C. 3582(c).

Convicted of distributing cocaine, Bethea was originally sentenced in September 2010 to 80 months of imprisonment, above the then applicable 60-to-71 month Guidelines range. In September 2011, he filed a 3582(c) motion for a reduced sentence based on retroactive amendments to the crack cocaine sentencing guidelines. Everyone believed at the time that the defendant faced a mandatory statutory minimum sentence of 60 months in prison. The district court summarily denied the defendant’s motion for a sentence below 80 months, stating only that, since the original sentencing range of 60-to-71 months was already found inadequate, a further reduction “would only exacerbate the insufficiency.”

The Circuit vacated, holding that the district …

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Alleyne v. United States Is Not Retroactive

In United States v. Redd (Shue), No. 13-2971 (2d Cir. Nov. 5, 2013) (Jacobs, Straub, and Pauley) (per curiam), available here, the Circuit held that Alleyne v. United States, 113 S. Ct. 2151 (2013), does not apply retroactively to cases on collateral review.

Alleyne held that “any fact that increases the mandatory minimum [sentence] is an ‘element’ that must be submitted to the jury” and proved beyond a reasonable doubt. 133 S. Ct. at 2155.

Shue, whose 1996 convictions and 292-month prison sentence had been affirmed on direct appeal, and whose 2255 motion had been denied as time-barred, sought to take advantage of the new rule announced in Alleyne. Specifically, he asked the Circuit to reinstate his direct appeal so he could obtain relief under Alleyne.

The Circuit first construed the request as motion for leave to file a successive 2255 motion. The Circuit then held that leave could …

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Monday, November 4th, 2013

United States v. Nunez-Banuelos: Circuit Upholds Convictions for Misusing Social Security Number and for Wire Fraud

In United States v. Nunez-Banuelos, No. 12-85-cr (2d Cir. Nov. 4, 2013) (summary order), the Circuit upheld the defendant’s convictions of misusing a social security number in violation of 42 U.S.C. 408(a)(7)(B) and of wire fraud in violation of 18 U.S.C. 1341. The evidence at trial showed that the defendant used a social security number that he had made up to obtain unemployment benefits from the Connecticut Department of Labor.

On appeal, the defendant argued that the evidence was insufficient to establish that he had the requisite intent to deceive. He claimed that he did not know that only United States citizens and aliens lawfully residing in the United States could receive unemployment benefits.

The Circuit rejected the defendant’s arguments. The trial evidence showed that the application for unemployment benefits asked the defendant to submit an alien registration number if he was not a citizen but that the defendant submitted a fictional social …

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