Author Archive | Edward S. Zas

Monday, December 22nd, 2014

Statutory Rape Under New York Penal Law Section 130.40-2 Is Not Categorically a “Crime of Violence”

United States v. Van Mead, No. 12-4054-cr (2d Cir. Dec. 8, 2014) (Livingston, Lohier, and Stein), available here

Section 130.40-2 of New York’s Penal Law provides that “[a] person is guilty of criminal sexual act in the third degree when . . . [b]eing twenty-one years old or more, he or she engages in oral sexual conduct or anal sexual conduct with a person less than seventeen years old.”

The question presented by this appeal was whether the conduct prohibited by this statute qualified categorically as a “crime of violence” under Sections 2K2.1 and 4B1.2 of the Sentencing Guidelines. The Circuit said no.

The Court distinguished this case from its earlier ruling in United States v. Daye, 571 F.3d 225 (2d Cir. 2009), in which the Circuit held that violation of a Vermont law barring sexual contact with a minor aged fifteen or younger constituted a “violent felony” under …

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Thursday, December 4th, 2014

Appeal from Supervised Release Revocation Not Rendered Moot By Completion of Prison Sentence

United States v. Wiltshire, No. 13-3590-cr (2d Cir. Dec. 1, 2014) (Kearse, Straub, and Wesley), available here

The district court found that defendant violated her supervised release by making false statements to her probation officer and by leaving the district of her supervision without permission. She was sentenced to 90 days in custody, to be served on weekends, to be followed by five years of supervised release.

During the pendency of her appeal, defendant completed her custodial sentence, but her term of supervision had not yet run.

Did the expiration of defendant’s custodial sentence render her appeal moot? The Court said no, because the district court’s judgment directly exposed defendant to two additional years of supervised release. The appeal was thus not moot because a favorable appellate ruling might prompt the district court to reduce defendant’s term of supervised release.

Unfortunately for defendant, however, the Circuit ruled on the merits that the …

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Wednesday, November 5th, 2014

Acceptance of Guilty Plea to Gun Charge Based on Different Weapon From the One Specified in the Indictment Was Not Plain Error

United States v. Bastian, No. 13-1156-cr (2d Cir. Oct. 29, 2014) (Katzmann, Sack, and Lynch), available here

Defendant pled guilty to conspiracy to distribute crack cocaine and to possessing a firearm in connection with that drug-trafficking offense (18 U.S.C. § 924(c)(1)). But the plea to the gun charge was based on the possession of a different weapon from the one identified in the indictment. On appeal, defendant argued that the district court’s acceptance of the plea constructively amended the indictment and that the court’s failure to inform him of his rights under the Grand Jury Clause prevented him from entering a knowing and voluntary plea.

Because these claims were not raised in the district court, the Circuit reviewed them for plain error only. And defendant could not satisfy that rigorous standard. The Court noted that, while two circuits have held that variations from the specific weapon named in an indictment can constructively amend an indictment, several cases …

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Tuesday, November 4th, 2014

District Court Properly Admitted Evidence of Witnesses’ Beliefs That Defendants Were Connected To Organized Crime

United States v. Fazio, Nos. 12-3786-cr, 12-3799-cr, 12-3874-cr (2d Cir. Oct. 22, 2014) (Walker, Leval, and Wesley), available here

Anthony Fazio, Sr., Anthony Fazio, Jr., and John Fazio, Jr., were officers in Local 348 of the United Food and Commercial Workers International Union. They allegedly demanded that business owners employing Local 348 members make payments to the Fazios “to ensure a good working relationship with the union.” The government claimed that the Fazios’ demands for money were accompanied by threats of economic and physical harm.

Following a jury trial in the Southern District of New York (Forrest, J.), defendants were convicted of all counts, which included racketeering conspiracy and extortion conspiracy.  On appeal, they challenged: (1) a ruling admitting evidence that certain witnesses believed that defendants were connected to organized crime, (2) the denial of a requested jury charge that the “fear” element of extortion cannot be satisfied by a threat of loss of economic advantage …

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Tuesday, September 16th, 2014

District Court Did Not Abuse Discretion by Admitting Documents as “Self-Authenticating,” Despite Government’s Failure to Comply With Rule 902

United States v. Komasa, No. 13-1534-cr(L) (2d Cir. Aug. 28, 2014) (Pooler, Hall, and Lohier), available here

Rule 902 of the Federal Rules of Evidence provides that certain items of evidence are self-authenticating; “they require no extrinsic evidence of authenticity in order to be admitted.” Fed. R. Evid. 902. These items include certified domestic records. But the rule requires the proponent of the evidence to give an adverse party, before trial, “reasonable written notice of the intent to offer the record — and [to] make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.” Fed. R. Evid. 902(11).
In this case, a prosecution for mortgage fraud, the district court admitted the pertinent loan files as self-authenticating under Rule 902(11), even though the government never gave the defendants the “written notice” required by the Rule.
The Circuit nevertheless found no …
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Mob Informant Beats Government on Appeal

United States v. Mergen, No. 12-2873-cr (2d Cir. Aug. 21, 2014) (Katzmann, Jacobs, and Duffy), available here

Volkan Mergen worked for years as a paid FBI informant operating inside mob families. In 2006, he participated with mob members in an arson without alerting the FBI in time to abort the crime.
Mergen then entered into a cooperation agreement by which he would plead guilty to a Travel Act offense in connection with the arson in exchange for a Section 5K1.1 “substantial assistance” letter. One provision of the agreement tolled the statute of limitations for prosecutions resulting from Mergen’s breach and “premised upon, among other things,” his statements to the government, his testimony, or leads derived therefrom. 
When Mergen breached the agreement, the government successfully prosecuted him in the Eastern District of New York for the Travel Act offense and other crimes (drug distribution, attempted robbery, firearm possession, and related …
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Monday, September 15th, 2014

Excluding Defendant’s Parents from Trial During Victim’s Testimony Did Not Violate Right to Public Trial

United States v. Ledee, No. 13-2363-cr (2d Cir. Aug. 8, 2014) (Walker, Pooler, and Wesley), available here

The defendant was convicted of crimes stemming from participating via webcam in the sexual abuse of an eight-year-old girl by her mother. At trial, the district court granted the government’s motion to close the courtroom during the victim’s testimony to all persons who were not directly involved in the trial, including the defendant’s parents.

On appeal, the defendant argued that the courtroom closure violated his Sixth Amendment right to a public trial. The Circuit, over a dissent by Judge Pooler, disagreed and affirmed. [Disclosure: Federal Defenders of New York, Inc., represents the defendant in this case.]

For a courtroom to be closed to the public in compliance with the Sixth Amendment, four requirements must be met: (1) the closure must “advance an overriding interest that is likely to be prejudiced;” (2) …

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Monday, July 28th, 2014

Cost of Incarceration Is Not a Permissible Factor In Deciding Whether To Impose Imprisonment

United States v. Park, No. 13-4142-cr (2d Cir. July 9, 2014) (Cabranes, Carney, and Droney) (per curiam), available here

Convicted of filing a false corporate tax return, Park was sentenced to three years’ probation, including six months’ home detention. The district court (Judge Block) explained that it was imposing this sentence — below the 15-to-21 month Guidelines range of imprisonment — solely because of the “government shut-down” in place at the time of sentencing.  The court said that it was not imposing imprisonment “only because of the economic plight that we are facing today.”
On the government’s appeal, the Circuit held that the probationary sentence was both procedurally and substantively unreasonable. On the procedural side, the district court erred by considering only the cost of incarceration, rather than all of the sentencing factors set forth in 18 U.S.C. § 3553(a).  Indeed, the Circuit held, the court should …
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Admission of Lineup Identification of Defendant Was, At Most, Harmless Error

United States v. Reed, No. 13-0359(L) (2d Cir. June 25, 2014) (Jacobs, Calabresi, and Pooler), available here

Reed was convicted after trial of various federal charges arising from the shooting and attempted robbery of a rival drug dealer. Reed argued on appeal that the district court should have suppressed a state court lineup identification of him as the assailant, on the grounds that the lineup was conducted in violation of his Sixth Amendment right to counsel.
On appeal, the Circuit found it unnecessary to decide whether the lineup identification should have been suppressed, holding that its admission at trial was harmless beyond a reasonable doubt. The Court concluded that the independent evidence linking Reed to the shooting and robbery was overwhelming and that the jury necessarily credited the testimony of a cooperating witness identifying Reed as a participant in the charged crimes. The Court also noted that one of …
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Supreme Court’s Peugh Decision Not Retroactive To Cases on Collateral Review

Herrera-Gomez v. United States, No. 14-1166 (2d Cir. June 17, 2014) (Winter, Walker, and Cabranes) (per curiam), available here

Petitioner, a federal prisoner convicted of conspiracy to distribute heroin, moved in the Circuit for leave to file a successive 28 U.S.C. § 2255 motion in the district court based on the Supreme Court’s decision in Peugh v. United States, 133 S. Ct. 2072 (2013). The Circuit, however, denied leave, holding that the rule announced in Peugh was not “a new rule of constitutional law . . . made retroactive to cases on collateral review by the Supreme Court.” 28 U.S.C. § 2255(h)(2).  
Peugh held that a “retrospective increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation.” 133 S. Ct. at 2804. In seeking leave to file a successive § 2255 …
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Thursday, June 19th, 2014

Evidentiary Error and Government Misconduct Required New Trial

United States v. Certified Environmental Services, Inc., No. 11-4872(L)-cr (2d Cir. May 28, 2014) (Raggi, Carney, and Rakoff), available here

Defendants, consisting of an asbestos air monitoring company, five of its employees, and an employee of an asbestos abatement contractor, were convicted collectively of 15 counts of conspiracy, mail fraud, and false statements. The charges related to a scheme to violate various state and federal environmental regulations and to certify falsely that proper air monitoring had been conducted.
The appealing defendants argued that (1) the district court improperly excluded evidence that they acted in the good-faith belief that they were complying with applicable state regulations; and (2) the prosecutors engaged in misconduct.
The Circuit agreed, holding that the district court erred by excluding the proffered evidence of good faith, and that, as the government conceded on appeal, the prosecutors committed multiple instances of misconduct throughout the trial. The misconduct …
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