Author Archive | Edward S. Zas

Wednesday, December 25th, 2013

Failure to Order Competency Hearing Was Not Abuse of Discretion

United States v. Harry, No. 12-3623-cr (2d Cir. Dec. 19, 2013) (Pooler, Parker, and Wesley) (summary order), available here

Convicted of threatening to harm the family of a United States Probation Officer, the defendant was sentenced principally to 46 months of imprisonment. He argued on appeal that the district court should have ordered a competency hearing in response to his erratic behavior. He also claimed that the court improperly excluded certain evidence at trial.
The Circuit affirmed. First, it held that, though the defendant was indisputably mentally ill, the district court was not required to hold a competency hearing. The record showed that the court properly assured itself that the defendant had an understanding of the proceedings and was fully able to participate in his defense. 
The Court also upheld the district court’s decision to exclude from evidence certain voicemail messages, which included discussions of the defendant’s participation in
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Tuesday, December 10th, 2013

Defendant Knowingly and Voluntarily Waived Right to Appeal

United States v. Coston, No. 12-4622-cr (2d Cir. Dec. 10, 2013) (Katzmann, Winter, and Calabresi), available here

Nothing new here: This per curiam decision merely holds that the defendant knowingly and voluntarily waived his right to appeal and that his appeal waiver is therefore enforceable.
In his plea agreement, the defendant promised not to appeal any prison sentence of 120 months or less, including any related issues with respect to the Sentencing Guidelines or the reasonableness of the sentence imposed. Though the defendant was sentenced to just 27 months of imprisonment, he appealed anyway, contending that the appeal waiver was either void or unenforceable.
The Circuit rejected the defendant’s claims, holding that, in exchange for valid consideration, the defendant made a knowing, voluntary, and competent waiver of his appellate rights. No evidence showed that the sentence was reached in a manner that the plea agreement did not anticipate or
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Refusal to Quash Grand Jury Subpoenas Directed at Third Parties Is Not Immediately Appealable

United States v. Punn, No. 13-2780-cr (2d Cir. Dec. 6, 2013) (Pooler, Lynch, and Droney), available here

Today’s summary comes courtesy of Francisco Celedonio, a noted criminal defense attorney and member of the Federal Defenders’ Board of Directors:

Punn holds that an order denying a motion to quash grand jury subpoenas directed at third parties (on the ground that the subpoenas were issued solely to prepare for trial) is not immediately appealable.
A federal grand jury investigating Punn issued subpoenas seeking the testimony of Punn’s two adult children. The subpoenas were issued while Punn’s criminal case was at the motions stage. Punn moved to quash the subpoenas, arguing that they were issued for an improper purpose (assisting the government in its trial preparation). The district court denied the motion to quash, as well as a motion to reconsider, on the grounds that Punn lacked standing to raise constitutional issues
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Monday, December 9th, 2013

Conspiracy Charges Barred by Statute of Limitations

United States v. Grimm, et al., Nos. 12-4310-cr; 12-4365-cr; 12-4371-cr (2d Cir. Dec. 9, 2013) (Kearse, Jacobs, and Straub), available here

As we previously reported (at this link), on November 26, 2013, the Court issued a one-page order reversing the conspiracy convictions of Peter Grimm, Dominick Carollo, and Steven Goldberg. The order stated that an opinion would follow in due course. This is the promised opinion, in which the Court ruled, by a two-to-one vote, that the indictment was barred by the applicable statutes of limitations.
The three defendants, employees of General Electric Company (“GE”), conspired to fix below-market rates on interest paid by GE to municipalities. The conspiracy depressed the interest rate on the payments made to the municipalities by GE, an unindicted co-conspirator.
The appeal turned on whether the artificially reduced payments by GE to the municipalities constituted “overt acts” in furtherance of the conspiracy. If
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Tuesday, December 3rd, 2013

Supervised Release Condition Infringing Parental Rights Required Remand

United States v. McGeoch, No. 12-5012-cr (2d Cir. Dec. 3, 2013) (Walker, Cabranes, and Parker) (summary order), available here

The defendant was convicted of using a facility of interstate commerce to persuade a 15-year-old and a person he believed to be a 13-year-old to engage in illegal sexual activity. He was sentenced principally to 151 months of imprisonment and twenty years of supervised release. One of the “special conditions” of supervised release prohibited the defendant from having unsupervised contact with persons under the age of 18, including his two minor sons.
On appeal, the defendant first argued that the district court erred by adding five offense levels to his guidelines range under U.S.S.G. § 4B1.5(b), based on “a pattern of activity involving prohibited sexual conduct.” The Circuit disagreed, holding that the defendant engaged in “prohibited sexual conduct” on “at least two separate occasions,” thus establishing the requisite “pattern.” The
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District Court Properly Denied Motion to Suppress

United States v. Cardona, No. 12-4612-cr (2d Cir. Dec. 3, 2013) (Kearse, Jacobs, and Parker) (second amended summary order), available here

Convicted after trial of cocaine trafficking, the defendant argued on appeal that the district court should have suppressed various pieces of evidence because his arrest and the ensuing search of his vehicle lacked probable cause. The Circuit disagreed, holding that law enforcement officers properly relied on information provided by another man, Morales-Gomez, who claimed (upon being arrested for drug possession) that he was to deliver 30 kilograms of cocaine to the defendant. Though the officers had not previously worked with Morales-Gomez, they verified many details of his account, including his description of the defendant, the defendant’s nationality, the specifics of the defendant’s criminal record, as well as where he lived and what car he drove. The corroboration of these “innocent” details, the Court wrote, gave sufficient reason to
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Monday, December 2nd, 2013

Circuit Reverses Conspiracy Convictions One Week After Oral Argument

United States v. Grimm, et al., Nos. 12-4310-cr; 12-4365-cr; 12-4371-cr (2d Cir. Nov. 26, 2013) (Kearse, Jacobs, Straub) (unpublished one-page order)

In a one-page order dated November 26, 2013, just one week after hearing oral argument, the Court reversed the conspiracy convictions of Steven Goldberg, Peter Grimm, and Dominick Carollo. The three men had been convicted of participating in a conspiracy to commit wire fraud and to defraud the Internal Revenue Service in connection with a scheme to bid for and win contracts known as guaranteed investment contracts from municipal bond issuers at artificially determined or suppressed rates.
The order does not state the reasons for the reversals, but indicates that an “opinion will follow in due course.” The main issue on appeal concerned whether the government had proven that any overt acts were committed in furtherance of the charged conspiracy within the applicable statute-of-limitations period.
Stay tuned: We
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Defendant Not Entitled to Writ of Audita Querela

United States v. Quintieri, No. 13-464-cr (2d Cir. Dec. 2, 2013) (Kearse, Jacobs, and Parker) (summary order) (as amended), available here

A writ of audita querela is an extraordinary remedy under the All Writs Act, 28 U.S.C. Section 1651(a), and is generally available only if the absence of any avenue of collateral attack would raise serious questions about the laws limiting those avenues. The writ is generally not available to review a criminal conviction if the petitioner could have raised his or her claims in a motion under 28 U.S.C. Section 2255.
Quintieri sought the writ because, at his sentencing for possessing a counterfeit check, his attorney requested (and obtained) a prison sentence of a year-and-a-day (366 days), rather than a year-minus-a-day (364 days). Quintieri claimed the lower sentence would have not subjected him to automatic removal from the United States for having committed an aggravated felony.
The panel
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Wednesday, November 27th, 2013

Refusal to Allow Defendant to Present Surrebuttal Evidence Requires New Trial

United States v. Murray, No. 11-0351-cr (2d Cir. Nov. 27, 2013) (Leval, Sack, and Hall), available here

This published decision holds that the district court’s refusal to allow the defendant to present surrebuttal evidence to respond to new evidence introduced by the government on rebuttal denied  him his right to present a meaningful defense. Judge Hall dissents.

A jury found Murray, a firefighter, guilty of four counts relating to the cultivation of marijuana plants in the basement of a Bellerose, Queens, home owned by Cody, a fellow firefighter who knew Murray. The trial was essentially a credibility contest between Cody, who pled guilty and testified for the government, and Murray, who testified in his own defense. Cody claimed that Murray hatched the idea of growing marijuana in Cody’s house and that Murray was intimately involved in the crime. Murray, in contrast, testified that he knew nothing of the marijuana and visited Cody’s home only about five to seven …

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Tuesday, November 26th, 2013

Defendant Gave Implied Consent to Seizure By Disclosing Location of Gun

United States v. Simmons, No. 12-1637-cr (2d Cir. Nov. 26, 2013) (Pooler, Lohier, and Carney) (summary order), available here

The panel held that the seizure of a firearm from the defendant’s room did not violate the Fourth Amendment because he gave “implied consent” to the seizure.

The district court found that, by telling police officers the precise location of the gun, the defendant  implicitly consented to them seizing it. The court also found that such consent was given voluntarily.

The Circuit, finding no clear error in these findings, affirmed the denial of the defendant’s motion to suppress.  …

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Fair Sentencing Act Does Not Apply to Defendants Sentenced Prior to August 3, 2010

United States v. Rowley, No. 12-3975 (2d Cir. Nov. 26, 2013) (Kearse, Jacobs, Parker) (summary order), available here

This summary order reaffirms that the Fair Sentencing Act does not apply to defendants who were convicted and sentenced before August 3, 2010. See United States v. Diaz, 627 F.3d 930, 931 (2d Cir. 2010).

The one noteworthy aspect of the summary order is that the Court, apparently for the first time, explicitly rejected the Sixth Circuit’s contrary decision in United States v. Blewett, 719 F.3d 482 (6th Cir. 2013). The panel noted that Blewett “arguably contradicted” binding Sixth Circuit precedent and has since been vacated pending rehearing en banc. The panel further stated that Blewett appeared to be “wrongly decided” and that every circuit to consider Blewett “has declined to follow its lead.” …

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