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Author Archive | Colleen Cassidy

Monday, September 30th, 2024

A divided panel of the Second Circuit affirms a fraud sentence more than twice the top of the Guidelines range as substantively reasonable, where dissent sees “clear signs” that it was punishment for going to trial.

In United States v. John Trasacco, 23-cr-6344, September 26, 2024 (2d Cir.), the Circuit affirmed the conviction and 96-month sentence for substantive and conspiracy to commit wire fraud based on a scheme to defraud the City of West Haven of $400,000 in covid relief funds. (Lohier, Nathan, and Parker, dissenting in part). Trasacco conspired with three others, all of whom pled guilty and received sentences of 27 months, 13 months, and 6 months. Tasacco was the only defendant who went to trial. Trasacco argued that his sentence, more than twice the top of the Guidelines range, was substantively unreasonable because it was punishment for his refusal to plead guilty as the others had done. The panel split on this issue, with the majority accepting the district court’s “express statement” that the defendant would not be punished for exercising his right to trial, even as it referred to Trasacco’s …

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Categories: substantive reasonableness

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Categories: substantive reasonableness

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After reversal by the Supreme Court, Circuit vacates fraud convictions based on invalid legal theories, but allows new trial of two defendants on traditional fraud theories

On May 11, 2023, the Supreme Court reversed the Second Circuit in Ciminelli v. United States, 598 U.S. 306 (2023), and Percoco v. United States, 598 U.S. 319 (2023) holding invalid both the Circuit’s “right to control” theory of fraud (Ciminelli) and its theory that a private citizen with a “special relationship” with the government, who “dominated and controlled” government business may be convicted of honest services fraud (Percoco). See Blog May 15, 2023. Given the Supreme Court’s holding, the Circuit had to vacate their convictions, which were based on the invalid theories.

The Circuit did vacate those convictions, just this week, in United States v. Aiello, No 18-2990 (2d Cir. September 23, 2024) (Chin, Raggi, Sullivan) but remanded for retrial of Ciminelli and Percoco on traditional fraud theories, even though traditional fraud theories were not pursued at the first trial. …

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Categories: double jeopardy, fraud, honest services fraud

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Categories: double jeopardy, fraud, honest services fraud

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Second Circuit holds that search of an SD card inserted in a cell phone was authorized by a warrant to search the cell phone.

In United States v. Tompkins, No. 22-599 (2d Cir. Sept. 23, 2024)(Livingston, Menashi and Kahn), U.S. Marshalls obtained a warrant to search the defendant’s cell phone for evidence of his failure to register as a sex offender. They arrested him and took his cell phone to search it, but could not open it without the pin number. The found an SD card inserted into the back of the phone and searched that, finding child pornography. They obtained another warrant to search for child pornography, searched again, and found more child pornography on the SD card. Tomkins argued that the warrant did not authorize a search of the cell phone because it did not include the SD among the property to be searched. The Circuit disagreed, holding that the SD card was covered by the warrant’s language, in the “information” to be searched section, “including any form of …

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Categories: Warrants

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Categories: Warrants

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Thursday, June 27th, 2024

Supreme Court Summarily Vacates Second Circuit’s Opinion In United States v. Montague, Which Upheld A Barebones CCE Indictment Alleging No Specific Predicate Violations.

In United States v. Montague, 67 F.4th 520 (2d Cir. 2023), a divided panel of the Second Circuit affirmed a barebones CCE indictment alleging only that the defendant “did knowingly, willfully and unlawfully engage in a Continuing Criminal Enterprise in that he did violate Title 21 United States Code, Sections 841(a)(1) and 846, which violations were part of a continuing series of violations of said statutes,” without specifying any predicate violations. Judge Menashi wrote the opinion, joined by Judge Bianco. Judge Jacobs dissented. The opinions are fully discussed in our blog post dated May 12, 2023.

On October 18, 2023, the full Circuit denied rehearing en banc, over the dissent of five judges, written by Judge Perez. United States v. Montague, 84 F.4th 583 (2d Cir. 2023).

On June 17, 2024, the United States Supreme Court granted certiorari, vacated the judgment, and remanded the case to the …

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Categories: CCE, grand jury, indictment

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Categories: CCE, grand jury, indictment

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Tuesday, April 30th, 2024

Circuit holds that federal supervised release only begins when the defendant is released from subsequent state custody, not when he is released from federal custody into state custody.

In United States v. Freeman, No. 23-6394 (2d Cir. April 23, 2024), the defendant was ordered to begin his supervised release almost ten years after his release from federal prison, when he was finally released from state custody on charges that were dismissed. Freeman argued that his supervised release term began upon his release from federal prison and was not tolled by his state detention. 18 U.S.C. 3624(e),  provides that “a prisoner whose sentence includes a term of supervised release after imprisonment shall be released by the Bureau of Prisons to the supervision of a probation officer” and that “supervised release commences on the day the person is released from imprisonment.” It further provides that the term of supervised release is tolled for any period in which the person is “imprisoned in connection with a conviction for a Federal, State, or local crime” unless the sentence is less than …

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Categories: commencement, supervised release, tolling

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Categories: commencement, supervised release, tolling

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Friday, February 23rd, 2024

Circuit upholds conviction based on a plea to an indictment mistakenly alleging that the crime occurred on a date four months earlier than the actual date.

In United States v. Morgan, No. 22-2798 (2d Cir. February 23, 2024), the Circuit (Parker, Lynch and Khan) affirmed, in a summary order, the defendant’s conviction for being a felon in possession of ammunition based on an indictment that charged and a guilty plea that admitted to that crime occurring on March 8, 2020, although the offense indisputably occurred on August 31, 2020. Morgan was sentenced for the crime occurring on August 31, 2020, which had been charged in the original complaint, but not in the indictment to which he pled guilty. The Circuit concluded that there was no constructive amendment because “the conduct Morgan was charged with, pled guilty to, and ultimately was sentenced for was one and the same,” and he was on notice of the “essence of the crime.”…

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Categories: constructive amendment, indictment

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Categories: constructive amendment, indictment

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Wednesday, February 21st, 2024

Where a §2255 petition alleges that counsel failed to file a requested notice of appeal, the district court may not summarily dismiss but must undertake a factual inquiry.

In United States v. Thomas, No. 22-2026 (February 21, 2024), the Circuit (Jacobs, Sack, and Nardini) reversed, in a per curiam opinion, the district court’s summary denial of a §2255 petition alleging that counsel failed to file a notice of appeal as petitioner requested. Thomas swore in his petition that he told his lawyer to file the notice of appeal. The district court held that this allegation was insufficient because Thomas did not include details, such as when and how the request was made, whether there were discussions about it, and whether he was aware of the deadlines for an appeal. The Circuit held that the district court’s summary denial was an abuse of discretion. The Court reaffirmed its precedent in United States v. Campuzano, 442 F.3d 770, 776 (2d Cir. 2006), that a factual inquiry is required “when a defendant claims that his attorney failed to file …

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Categories: ineffective assistance of counsel, Notice of Appeal

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Categories: ineffective assistance of counsel, Notice of Appeal

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Monday, October 30th, 2023

Five Second Circuit Judges Dissent From Denial Of Rehearing En Banc On Whether RICO Predicate Offenses Must Be Factually Set Forth In The Indictment.

In United States v. Montague, __ F.4th __, 2023 WL 6852846 (2d Cir. Oct. 18, 2023), Judge Perez, joined by Judges Lee, Robinson, Nathan, and Merriam, dissented from the Circuit’s denial of rehearing en banc. The dissent posed the question (and answer) of “exceptional importance”: “does an indictment for a crime with predicated offenses as necessary elements require any factual detail regarding those predicate offenses? The answer, in our view, should be an easy ‘yes.’”

A divided panel of the Second Circuit (Menashi and Bianco; Jacobs dissenting) had upheld a bare bones indictment alleging the predicates – which are elements of RICO – only as “violations of Title 21 United States Code, Sections 841(a)(1) and 846″ with no factual detail. United States v. Montague, 67 F.3d 520 (2d Cir. 2023). See Blog Post, May 12, 2023. Judge Jacobs dissented on the ground that the specific acts constituting the …

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Categories: CCE, grand jury, indictment

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Wednesday, July 19th, 2023

For computer offenses of “causing damage” to a computer, Second Circuit allows venue in the location of any computer that was prevented from accessing files that were unlawfully deleted from the remote server of a software vendor.

In United States v. Calonge, No. 21-3089 (2d Cir. July 14, 2023) (Parker, Lynch, Lohier), the Circuit affirmed convictions under the Computer Fraud and Abuse Act (“CFAA”) in the Southern District of New York for transmitting a program code or command and intentionally “caus[ing] damage” to a computer and accessing a computer without authorization and recklessly “caus[ing] damage,” in violation of 18 U.S.C. §§1030(a)(5)(A) and (B).  The defendant’s conduct of deleting files from a software vendor used by her employer was committed in Florida. Venue in New York had been based on the loss of access to those files by the computers at the New York headquarters of her employer.  Calonge argued that no New York computer was “damaged” and that venue could only lie in Florida, where the conduct was committed, or in Virginia or California, where the deleted data resided on the vendor’s servers. The …

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Friday, July 14th, 2023

Application of the Maritime Drug Law Enforcement Act (“MDLEA”) to foreign conspirators who were never on the high seas, and where neither the defendants nor the scheme have a nexus to the United States, does not violate Due Process or Article I.

In United States v. Antonius, No. 21-1083 (2d Cir. July 10, 2023) (Calabresi, Lynch, and Robinson), the Second Circuit affirmed the convictions of three land-based foreign nationals for conspiracy to traffic drugs on the high seas using a stateless vessel where neither the defendants nor the conspiracy had any connection to the United States. The defendants had never been on the high seas but conspired from land to send drugs from Guyana to the Netherlands on the high seas in a stateless vessel. The Circuit had previously held that MDLEA reached foreign land-based conspirators whose plan involved no travel through United States waters but who had minor contact with the United States in furtherance of the conspiracy. United States v. Alarcon-Sanchez, 972 F.3d 156 (2d Cir. 2022).The Antonius defendants argued that their prosecution under the MDLEA statute violated due process because their conduct had no nexus …

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Categories: due process, extraterritorial jurisdiction, MDLEA

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Monday, May 15th, 2023

Supreme Court Reverses Two Second Circuit Fraud Decisions

On May 11, 2023, the Supreme Court decided Ciminelli v. United States, 21-1158 and Percoco v. United States, No. 21-1158, reversing the Second Circuit in two fraud decisions  resulting from the multi-defendant trial of alleged corruption surrounding the Cuomo administration. The Supreme Court continues its curtailment of amorphous theories of federal fraud to prosecute government corruption cases.

In Ciminelli, the Supreme Court rejected the Second Circuit’s “right to control” theory of  federal fraud, in which “property” under the fraud statutes “includes intangible interests such as the right to control the use of one’s assets.” Under this theory, Ciminelli was convicted of wire fraud for a bid-rigging scheme on the theory that he deprived the victim of “potentially valuable economic information” “necessary to make discretionary economic decisions.” Op. at 1-4. The Court reversed his conviction.

The Supreme Court reiterated the rule of Cleveland v. United States, 531 U.S. …

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Categories: honest services fraud, property, wire fraud

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Categories: honest services fraud, property, wire fraud

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