Author Archive | Edward S. Zas

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

Second Circuit rejects claims that District Court erred in limiting cross-examination of prosecution witness and committed various procedural errors at sentencing.

United States v. Rodriguez, No. 14-4267 (2d Cir. Apr. 27, 2016) (Leval, Droney, and Engelmayer).

Rodriguez was convicted by a jury of charges of racketeering conspiracy and conspiracy to distribute narcotics. He argued on appeal that the district court erred by disallowing certain cross-examination of a key prosecution witness, and that the district court committed various procedural errors at sentencing. The Court affirmed.

(a) Cross-examination.

Before trial, the government moved to preclude the defense from cross-examining a key government witness at trial about certain sexual offenses he had committed. Defense counsel argued that the evidence bore upon the witness’s credibility but the district court excluded it under Fed. R. Evid. 403.

The Circuit held that the district court had properly balanced the relevant factors under Rule 403 and had noted that the witness disclosed his sexual misconduct to the government, which undermined the defense’s argument that his sexual …


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Categories: Rule 403, sentencing, Uncategorized

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Wednesday, April 27th, 2016

In Summary Order, Second Circuit rejects claims that bank records and tax returns erroneously were admitted into evidence, that the government improperly interfered with defense access to witnesses, and that the government made improper statements during summation.

United States v. Tavarez, No. 15-1395 (2d Cir. Apr. 27, 2016) (Katzmann, Cabranes, and Kaplan).

Tavarez was convicted after a jury trial of one count of conspiracy to distribute and possess with intent to distribute cocaine. He argued on appeal that: (1) the district court abused its discretion by admitting Tavarez’s bank records and tax returns into evidence; (2) the government impaired his right to a fair trial by improperly interfering with his access to witnesses, including by not granting them use immunity; and (3) the government’s statements during summation denied him a fair trial. The Court rejected all three claims.

First, the Court agreed with the district court that Tavarez’s bank records were relevant and that their probative value was not outweighed by any risk of unfair prejudice. The evidence showed that Tavarez deposited and withdrew large sums of cash at relevant times, despite reporting no income or …

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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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Tuesday, March 15th, 2016

Second Circuit Overturns Sentence Based on “Reasonable Probability” that Factual Misunderstanding Affected Sentence, Affirms Three Other Sentences

The Court did not release any published criminal decisions today, but did issue four summary orders in criminal cases:

  1. United States v. Peña, No. 14-3837(L) (Katzmann, Lohier, and Droney)

The Peña brothers (Hector and Jose) were convicted after a jury trial of various counts relating to the murders of a drug dealer and others. The Court affirmed their convictions.

First, the Court held that the district court did not abuse its discretion by denying Hector’s request to continue the trial date because of a scheduling conflict, even though that denial forced a change of lawyers and deprived the defendant of his counsel of choice. The Court noted the defendant’s interest in a speedy trial and the original lawyer’s failure to bring the scheduling conflict to the court’s attention in a timely manner. The Court further noted that the right to counsel of choice does not extend to defendants …

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Monday, March 30th, 2015

Good Faith Reliance on Search Warrant Required Reversal of Suppression Order

United States v. Raymonda, No. 13-4899-cr (2d Cir. Mar. 2, 2013) (Walker, Lynch, and Chin), available here

Someone using defendant’s IP address accessed thumbnail images of child pornography on the Internet. More than nine months later, government agents obtained a search warrant for defendant’s  home and discovered over 1,000 files of child pornography. The district court granted the defendant’s motion to suppress, holding that the government’s evidence that defendant had accessed child pornography on a single occasion nine months earlier was too stale to establish probable cause that he would still possess illicit images at the time of the search.

The Circuit reversed, over a dissent by Judge Chin. The majority agreed with the district court that a single incident of access to thumbnail images of child pornography, absent any other circumstances suggesting that the suspect accessed those images deliberately or has a continuing interest in child pornography, fails …

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Monday, December 22nd, 2014

Statutory Rape Under New York Penal Law Section 130.40-2 Is Not Categorically a “Crime of Violence”

United States v. Van Mead, No. 12-4054-cr (2d Cir. Dec. 8, 2014) (Livingston, Lohier, and Stein), available here

Section 130.40-2 of New York’s Penal Law provides that “[a] person is guilty of criminal sexual act in the third degree when . . . [b]eing twenty-one years old or more, he or she engages in oral sexual conduct or anal sexual conduct with a person less than seventeen years old.”

The question presented by this appeal was whether the conduct prohibited by this statute qualified categorically as a “crime of violence” under Sections 2K2.1 and 4B1.2 of the Sentencing Guidelines. The Circuit said no.

The Court distinguished this case from its earlier ruling in United States v. Daye, 571 F.3d 225 (2d Cir. 2009), in which the Circuit held that violation of a Vermont law barring sexual contact with a minor aged fifteen or younger constituted a “violent felony” under …

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Thursday, December 4th, 2014

Appeal from Supervised Release Revocation Not Rendered Moot By Completion of Prison Sentence

United States v. Wiltshire, No. 13-3590-cr (2d Cir. Dec. 1, 2014) (Kearse, Straub, and Wesley), available here

The district court found that defendant violated her supervised release by making false statements to her probation officer and by leaving the district of her supervision without permission. She was sentenced to 90 days in custody, to be served on weekends, to be followed by five years of supervised release.

During the pendency of her appeal, defendant completed her custodial sentence, but her term of supervision had not yet run.

Did the expiration of defendant’s custodial sentence render her appeal moot? The Court said no, because the district court’s judgment directly exposed defendant to two additional years of supervised release. The appeal was thus not moot because a favorable appellate ruling might prompt the district court to reduce defendant’s term of supervised release.

Unfortunately for defendant, however, the Circuit ruled on the merits that the …

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Wednesday, November 5th, 2014

Acceptance of Guilty Plea to Gun Charge Based on Different Weapon From the One Specified in the Indictment Was Not Plain Error

United States v. Bastian, No. 13-1156-cr (2d Cir. Oct. 29, 2014) (Katzmann, Sack, and Lynch), available here

Defendant pled guilty to conspiracy to distribute crack cocaine and to possessing a firearm in connection with that drug-trafficking offense (18 U.S.C. § 924(c)(1)). But the plea to the gun charge was based on the possession of a different weapon from the one identified in the indictment. On appeal, defendant argued that the district court’s acceptance of the plea constructively amended the indictment and that the court’s failure to inform him of his rights under the Grand Jury Clause prevented him from entering a knowing and voluntary plea.

Because these claims were not raised in the district court, the Circuit reviewed them for plain error only. And defendant could not satisfy that rigorous standard. The Court noted that, while two circuits have held that variations from the specific weapon named in an indictment can constructively amend an indictment, several cases …

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