Author Archive | Edward S. Zas

Thursday, November 21st, 2013

Court Upholds Rule 404(b) Decision and Sufficiency of Evidence

United States v. Cartagena, No. 12-4910-cr (2d Cir. Nov. 21, 2013) (Newman, Hall, and Lynch) (summary order), available here

Cartagena was convicted by a jury of attempting and of conspiring to distribute at least five kilograms of cocaine. At trial, the court admitted testimony that Cartagena had been involved earlier an an uncharged 2009 drug conspiracy.

The panel held that this evidence was properly admitted to provide “relevant background information” that explained the defendant’s relationship to Seyfried, a co-conspirator, and the defendant’s knowledge of Seyfried’s role in a national drug conspiracy. The evidence was also properly admitted under Fed. R. Evid. 404(b) because it provided relevant proof of the defendant’s specific knowledge of Seyfried’s drug activities and proof of the relationship between the two men. The evidence was not unduly prejudicial because it did not involve conduct more serious than the charged crime.

The panel also held that the …

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Restitution Order Was Not Plainly Erroneous

United States v. Schwamborn, No. 12-5125-cr (2d Cir. Nov. 21, 2013) (Pooler, Raggi, and Wesley) (summary order), available here

Convicted of securities fraud, the defendant was sentenced principally to 121 months of imprisonment and about $182,000 in restitution. On appeal, he challenged the restitution order on three grounds: (1) one of the victim’s affidavits was unreliable and overstated the loss amount; (2) the defendant had not caused the victims’ losses; and (3) the need to provide restitution was outweighed by the burden placed on the sentencing process.

The court of appeals, applying plain error analysis, rejected all three arguments. First, the victim’s affidavit was sworn, notarized, and sufficiently reliable to support its probable accuracy. Second, the evidence supported the district court’s conclusion that the defendant was the proximate cause of the victims’ losses. Third, the factual circumstances of the case were not so complex as to unduly prolong the …

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Wednesday, November 20th, 2013

Sentence of Imprisonment Plus Supervised Release Following Revocation Was Reasonable

United States v. Beckett, No. 12-4233-cr (2d Cir. Nov. 20, 2013) (Pooler, Raggi, and Wesley) (summary order), available here

After the defendant violated his supervised release, the district court imposed a sentence of 10 months of imprisonment, to be followed by a new, 19-month term of supervised release. On appeal, the defendant argued that the new term of supervised release was unreasonable because it contradicted the Probation Office’s recommendation against any further supervised release.

The Circuit held that the new term of supervised release was reasonable. The panel noted that the Probation Office’s recommendation against supervised release was not binding on the district court, and that the court gave valid reasons for rejecting the recommendation. The court cited the defendant’s need for drug and alcohol treatment and the need to protect the public from any further crimes, valid statutory factors. Accordingly, the Circuit affirmed.   …

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Tuesday, November 19th, 2013

Circuit Affirms 300-Month Sentence for Armed Career Criminal

United States v. Roy, 12-3242-cr (2d Cir. Nov. 19, 2013) (Lynch, Chin, and Carney) (summary order), available here

Convicted of distributing marijuana and of possessing a firearm as a previously convicted felon, in violation of 18 U.S.C. 922(g)(1), the defendant was sentenced under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. 924(e), to 300 months of imprisonment. In this summary order, the court of appeals upheld the sentence as procedurally and substantively reasonable.
Under ACCA, a person who violates 18 U.S.C. 922(g) and has “three previous convictions … for  a violent felony … committed on occasions different from one another … shall be … imprisoned not less than fifteen years.” Roy had three prior state convictions in Connecticut for burglary and two for arson. If these convictions were for “generic” burglary or “generic” arson, they qualified as “violent felon[ies]” under ACCA.
The Circuit held that the two arson convictions
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Friday, November 15th, 2013

District Court Did Not Adequately Explain Refusal to Reduce Sentence

United States v. Christie, No. 13-245-cr (2d Cir. Nov. 15, 2013) (Lynch, Chin, and Droney), available here

Defendant moved for a sentence reduction under 18 U.S.C. 3582(c)(2), based on the 2011 Amendments to the Sentencing Guidelines lowering the penalties for crack cocaine offenses. Both the Probation Office and the government agreed that the defendant was eligible for a reduction. But the government argued that the court should decline to reduce the sentence because of the defendant’s firearms offenses and criminal history.
The district court entered an order that stated only that the defendant’s motion was “denied.” The court did not explain the reasons for its decision. 
The Circuit held that the court’s failure to explain its decision made meaningful appellate review impossible. The Circuit noted that the defendant’s sentence was above the now-applicable Guidelines range and that nothing in the record revealed why an above-Guidelines sentence was warranted. Because
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Thursday, November 14th, 2013

Defendant’s Death Leads to Restitution Abatement

United States v. Kuruzovich, No. 12-1789-cr (2d Cir. Nov. 14, 2013) (Hall, Droney, and Restani) (summary order), available here

The defendant was sentenced to one year of imprisonment and about $59,000 in restitution. [Disclosure: the Federal Defenders of New York represented the defendant for a time in the district court.]

While his appeal was pending, but after completing his term of imprisonment, the defendant died. His estate had no assets, the victim no longer sought to benefit from restitution, and counsel for both sides consented to vacating the restitution order. Under these particular circumstances, the Circuit abated the restitution order. 

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District Court Properly Exercised Discretion to Halt Deliberations and Investigate Juror Misconduct

United States v. Purnell, No. 12-4167-cr (2d Cir. Nov. 14, 2013) (Walker, Cabranes, and Lohier) (summary order), available here

This summary order holds that the district court properly exercised its discretion to halt jury deliberations and investigate potential juror misconduct.
During deliberations, the jury sent two notes stating that it was deadlocked. Both times, the district court instructed the jury to continue deliberating. A third note stated that one juror was being “unreasonable” and may have withheld information from the court during voir dire.
Rather than simply deliver another Allen charge, the district court decided to question the juror at issue, who was subsequently removed from the jury. The Circuit held that the court’s decision to act in this manner was a proper exercise of its discretion. Indeed, the Circuit noted, it had recently reversed a court for not investigating credible claims of juror misconduct. See United States v.
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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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