Archive | sufficiency

Thursday, June 16th, 2016

Defendants bat 0-3 in the Circuit today

The Second Circuit issued three summary orders in criminal cases today.

In United States v. Clare, 15-1601, the Court affirmed the defendant’s conviction on marijuana and gun charges.  Clare argued that the evidence at trial was insufficient to sustain the convictions, primarily because the cooperating witnesses were not credible. The Court rejected this argument, explaining that “the credibility of witnesses is within the province of the jury, not this Court.”  Order at 2.  In light of the remaining evidence, the Court held that a reasonable juror could have concluded that Clare was guilty beyond a reasonable doubt.  Because the evidence was sufficient, Clare’s attorney was not ineffective in failing to move for a judgment of acquittal in post-trial briefing.  The Court also affirmed the district court’s denial of a motion to suppress.

In United States v. Washington, 14-4740, the Circuit rejected the defendant’s assertion that he had been …


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Categories: comptency, sentencing, sufficiency

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Thursday, May 26th, 2016

No Wins for Criminal Defendants Today

The Court issued two summary orders in criminal cases today. Neither Appellant prevailed.

  1. United States v. Humphries, No. 14-985-cr (2d Cir. May 26, 2016) (Cabranes, Straub, and Lohier)

Humphries was convicted after a jury trial of interstate travel in aid of racketeering, conspiracy to commit wire fraud to defeat Canadian tax revenue, conspiracy to manufacture tobacco products without a license, and money laundering. He was sentence to 72 months in prison.

On appeal, Humphries raised four arguments: (1) insufficiency of the trial evidence; (2) improper preclusion of certain affirmative defenses; (3) constructive amendment of the indictment; and (4) improper failure to suspend jury deliberations when it became “apparent” that he was no longer competent to stand trial. The Court addressed only the sufficiency argument, rejecting the other three claims without discussion.

The Court first held that the evidence was sufficient to establish Humphries’s intent to “distribute the proceeds of …


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Categories: criminal history, sufficiency, supervised release

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Monday, May 2nd, 2016

Conviction May Be Sustained upon the Uncorroborated Testimony of a Single Accomplice

In United States v. Fernandez et al., Docket No. 14-4158-cr (L), a summary order issued today, the Circuit principally reaffirms the longstanding rule that “a conviction can be sustained on the basis of testimony from a single accomplice, so long as the testimony is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt.” Order at 3 (citing United Sates v. Diaz, 176 F.3d 52, 92 (2d Cir. 1999)). Fernandez’s conviction (for conspiring to commit murder-for-hire, and for using a firearm to commit murder in furtherance of that conspiracy) was secured principally on the testimony of his cousin and co-defendant Darge. Testifying pursuant to a cooperation agreement, Darge told the jury that members of the Minaya drug organization hired him to murder two of its drug suppliers (Cuellar and Flores) for $180,000; that he recruited his cousin Fernandez to help him with the …

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Categories: credibility, sufficiency

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Categories: credibility, sufficiency

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Wednesday, April 20th, 2016

Circuit Affirms Convictions of Madoff Co-Conspirators

The Circuit issued no published criminal decisions today. But it did issue three summary orders, including a 30-page decision (does that still qualify as a “summary” order?) affirming the fraud-related convictions of five former employees of Bernie Madoff’s investment company.

  1. United States v. Bonventre, No. 14-4714-cr(L) (2d Cir. Apr. 20, 2016) (Walker, Raggi, and Droney)

Five former employee of Bernard L. Madoff Investment Securities were convicted after trial of multiple counts of conspiratorial and substantive securities fraud, bank fraud, and related charges for their participation in a massive scheme to defraud thousands of investors of tens of billions of dollars. On appeal, the defendants challenged various trial court rulings, the sufficiency of the evidence, the government’s trial conduct, and the judgments of forfeiture. The Court rejected all of their claims.

Bill of Particulars

First, the Court held that the district court did not err by denying a request for …


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Categories: evidence, forfeiture, government misconduct, joinder, sufficiency

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Wednesday, March 2nd, 2016

A Rare Sufficiency Win, On Transaction Structuring Counts

United States v. Taylor, No. 14-360-cr (March 2, 2016) (Droney, with by Pooler and Lohier)

The Circuit affirmed a cocaine conspiracy conviction over a constructive amendment claim, but vacated a conviction for transaction structuring on sufficiency grounds, holding that no rational juror could have found the requisite intent to evade currency reporting requirements just from the handful of suspicious transactions introduced at trial.

Taylor, a leader of the Buffalo chapter of the Afro Dogs Motorcycle Club, was charged with a conspiracy involving 5+ kilograms of cocaine — 21 U.S.C. § 841(b)(1)(A) quantity — and several counts of transaction structuring. The jury found him guilty of conspiracy, but indicated on the special verdict form that the conspiracy involved only 500+ grams of cocaine — 21 U.S.C. § 841(b)(1)(B) quantity.  On appeal, Taylor argued that “this conviction, based on an amount of cocaine less than that charged in the indictment, constituted …

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Saturday, November 17th, 2012

On Bank

United States v. Gyanbaah, No. 10-2441-cr (2d Cir. November 8, 2012) (Winter, Lynch, Carney, CJJ)

The appellant here was part of a group that, for more than three years, stole names and other identifying information, then used it to file thousands of fraudulent tax returns in those victims’ names. The group expected that about half of the refunds would be approved; having sought $2.2 million in refunds, they actually received more than $500,000. When they received a refund check, one of the fraudsters would forge the payee’s signature and endorse the check over to a group member, who would deposit the check into a controlled bank account and withdraw the money. 

Gyanbaah, the particular appellant here, was linked to deposits at three different banks and nearly seventy fraudulent tax returns.  A jury convicted him of five counts, including, in relevant part, one count of bank fraud and one …


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Categories: bank fraud, intent, sufficiency, Uncategorized

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Sunday, June 3rd, 2012

Fleeced Hampton

United States v. Litwok, No. 10-1985-cr (2d Cir. April 30, 2012) (Livingson, Lohier, CJJ, Koeltl, DJ)

An Eastern District jury convicted defendant Evelyn Litwok of one count of mail fraud, and three counts of tax evasion – for the years 1995, 1996 and 1997. The circuit found the evidence legally insufficient to support the conviction for the 1996 and 1997 tax evasions, and also found that the mail fraud and the 1995 tax evasion counts were improperly joined. The court remanded for a new trial on those counts.

Background

Litwok seems to have spent a good part of the mid-1990’s involved in financial shenanigans in and around East Hampton. The mail fraud conviction arose from her involvement in a scheme to defraud an insurance company by making false claims for property damage and related losses at her two East Hampton homes. The tax evasion charges arose from private equity …


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Categories: misjoinder, sufficiency, tax evasion, Uncategorized

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Sunday, March 20th, 2011

Down for the Count

United States v. Desnoyers, No. 10-0447-cr (2d Cir. March 14, 2011) (Jacobs, Wesley, Chin, CJJ)

Mark Desnoyers was convicted of, inter alia, one count of conspiring to both violate the Clean Air Act (“CAA”) and to commit mail fraud, in connection with his asbestos abatement work. The district court, finding both factual and legal problems with the conviction on that count, entered a post-verdict judgment of acquittal. On the government’s appeal, the circuit reversed and reinstated the conviction.

The conviction on the conspiracy count related to asbestos abatement work in eight buildings. But, after trial, the government conceded that seven of the buildings were not subject to the CAA’s asbestos removal regulations. As for the eighth, the evidence was equivocal. The issue – whether that building contained enough asbestos to qualify – was not proven directly at trial because no witness actually took measurements there. Rather, the only evidence was …


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Friday, August 13th, 2010

Coach Bagged

United States v. Broxmeyer, No. 09-1457-cr (2d Cir. August 3, 2010) (Jacobs, Miner, Wesley, CJJ)

Todd Broxmeyer, was a field hockey coach for teenage girls in upstate New York and elsewhere. For many years he engaged in sexual relationships with some of them , relationships that sometimes also involved the exchange of photographs. Eventually the axe fell, and he was tried and convicted of five count s- four relating to child pornography and one of aiding and abetting the transportation of a minor across state lines with the intent to engage in sexual activity. On appeal, he successfully challenged the legal sufficiency of the evidence as to three of the counts of conviction. The court reversed those counts and remanded the case for resentencing on the other two.

A. Production of Child Pornography

In 2007, Broxmeyer began a sexual relationship with A.W., who was then seventeen years old. The relationship …


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Categories: child pornography, sufficiency, transportation, Uncategorized

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Monday, June 21st, 2010

Ordinary People

United States v. Heras, No.09-3150-cr (2d Cir. June 18, 2010) (Raggi, Lynch, Wallace, CJJ)

On this government appeal, the circuit vacated a district court order granting a Rule 29 motion that misconstrued the “ordinary consequences” rule and remanded the case for reinstatement of the verdict.

Background

Defendant Heras was arrested in the parking lot of a Queens hotel, after dropping off the target of a controlled cocaine delivery. When the agents told him what was going on, he said that “[w]hatever happened” in the hotel “has to do with [the target]. That has nothing to do with me.” He first told the agents that he had taken the target there to meet a woman, but then admitted that he knew the target was a drug dealer who had gone to the hotel to pick up drugs. He also admitted that he expected the target to compensate him, as he had …


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Sunday, May 9th, 2010

Package Deal

United States v. Torres, No. 09-1771-cr (2d Cir. May 5, 2010)(Kearse, Hall, CJJ, Rakoff, DJ)

Every once in a while, when the judge and jury refuse to acquit an innocent defendant, the circuit steps in and sets things right. This is such a case. Finding that the evidence was insufficient to establish that Torres knew that there were drugs in some UPS packages that he went to great lengths to pick up, the court reversed the conviction and remanded for entry of a judgment of acquittal.

Background

On April 30, 2008, a UPS deliveryman attempted to deliver two large “high value” packages to “Jose Torrez” at an address in Yonkers. Two men intercepted the driver near that address and asked for the packages. The driver asked for identification, but because it showed an address in Brooklyn, he would not release the packages.

The men were persistent. They followed the truck …


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