Archive | indictment

Tuesday, August 9th, 2016

Failure to Charge Loss Amount in 18 U.S.C. 641 Case Harmless Error

In United States v. Lee, 15-458, the Second Circuit affirmed a conviction under 18 U.S.C. 641 and the 30-month sentence that followed.

Relying in part on Apprendi, the Court concluded that a loss amount in excess of $1000 is an element of a felony offense under Section 641 and that, to allege a felony, the indictment should allege that the loss amount exceed $1000.  In this case, however, where the pretrial discovery and the trial included “overwhelming” evidence that hundreds of thousands of dollars worth of government property had been stolen, the violation of the Fifth Amendment’s Grand Jury Clause was harmless.  Opinion at 3.  The deficient indictment gave Lee “specific notice of the nature of the offense and the core of the criminal conduct to be proven at trial.”  Opinion at 22.…

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Categories: Apprendi, grand jury, indictment

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Friday, August 24th, 2012

Grand Slam

United States v. Gonzalez, No. 11-1490-cr (2d Cir. July 19, 2012) (Jacobs, Kearse, McLaughlin, CJJ)

Omar Gonzalez was originally charged with a narcotics conspiracy in a superseding indictment that alleged his involvement with “mixtures and substances containing a detectable amount of cocaine.” The indictment did not allege a drug quantity, and cited 21 U.S.C. §§ 846 and 841(b)(1)(C), a penalty section that carries no mandatory minimum. Before trial, the government superseded again. The second superseding indictment was identical to the first except it replaced the citation to § 841(b)(1)(C) with a citation to § 841(b)(1)(B), a penalty provision that, in cases involving 500 grams or more of cocaine, has a five-year mandatory minimum; in 500+ gram cases like Mr. Gonzalez’, where the government files a prior felony information, it specifies a ten-year minimum.

During trial, the defense, after seeing the government’s proposed jury instructions, objected, noting that trafficking in …

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Categories: grand jury, indictment, Uncategorized

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Thursday, August 9th, 2012

Circuit Buries The Lede

United States v. Esso, No. 11-570-cr (2d Cir. June 27, 2012) (Walker, Lynch, Droney, CJJ)

The published opinion in this case is a short and fairly unremarkable decision holding that the district court did not err in allowing the members of a deliberating jury to take the indictment – it charged conspiracy to commit wire and bank fraud and substantive bank fraud – home with them to read overnight. The judge instructed the jurors that they must not show the indictment to – or discuss it with – anyone else, or conduct any outside research, and that the indictment was not evidence. 

That said, however, the circuit strongly “question[ed] the wisdom of the practice,” and “urge[d] caution on district courts considering it.” The practice increases the chance that jurors will be exposed to outside influences in a way that the court cannot monitor and also risks overemphasizing the significance …

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Categories: indictment, Uncategorized, unwarranted disparities

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Sunday, April 22nd, 2012

Remorse Code

United States v. Aleynikov, No. 11-1126 (2d Cir. April 11, 2012) (Jacobs, Calabresi, Pooler, CJJ)

Sergey Aleynikov, a former Goldman Sachs computer programmer, stole a portion of Goldman’s proprietary high frequency trading (“HFT”) computer code, apparently in preparation for taking a related, but higher paying, job at a startup company.  A jury convicted him of violating 18 U.S.C. § 2314, which makes it a crime to transport stolen “goods” in interstate commerce, and § 1832, which makes it a crime to steal a trade secret that is related to or included in a “product” that is “produced for or placed in” commerce.  Two months ago, the circuit reversed these convictions in a one-line order with an opinion to follow.

And here it is. While we were all expecting a sufficiency-of-the-evidence opinion, the court instead concluded that the indictment charging Aleynikov with those crimes was itself insufficient because it …

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Saturday, October 6th, 2007


United States v. Capoccia, No. 06-0669-cr (2d Cir. September 19, 2007) (Sotomayer, Katzmann, CJJ, Gertner, DJ)

In this case, the district court erred in ordering forfeiture of the proceeds of conduct that occurred prior to the date of the conduct with which the defendant was charged. The decision turned on a very narrow reading of the indictment, as well as on the nature of the statute under which the defendant was charged.

At issue was money that Capoccia, a lawyer, misappropriated from a credit counseling/debt reduction service that he founded. Capoccia was convicted of misappropriating unearned client retainer fees, failing to give complete refunds to clients who withdrew from the program, and embezzling client escrow funds that was supposed to be paid to credit card companies to settle clients’ debts.

Capoccia was charged with interstate transportation of stolen money under 18 U.S.C. § 2314. While the indictment referenced a “scheme” …

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Categories: fofeiture, indictment, scheme, stolen property, Uncategorized

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