Author Archive | Edward S. Zas

Tuesday, September 16th, 2014

District Court Did Not Abuse Discretion by Admitting Documents as “Self-Authenticating,” Despite Government’s Failure to Comply With Rule 902

United States v. Komasa, No. 13-1534-cr(L) (2d Cir. Aug. 28, 2014) (Pooler, Hall, and Lohier), available here

Rule 902 of the Federal Rules of Evidence provides that certain items of evidence are self-authenticating; “they require no extrinsic evidence of authenticity in order to be admitted.” Fed. R. Evid. 902. These items include certified domestic records. But the rule requires the proponent of the evidence to give an adverse party, before trial, “reasonable written notice of the intent to offer the record — and [to] make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.” Fed. R. Evid. 902(11).
In this case, a prosecution for mortgage fraud, the district court admitted the pertinent loan files as self-authenticating under Rule 902(11), even though the government never gave the defendants the “written notice” required by the Rule.
The Circuit nevertheless found no
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Mob Informant Beats Government on Appeal

United States v. Mergen, No. 12-2873-cr (2d Cir. Aug. 21, 2014) (Katzmann, Jacobs, and Duffy), available here

Volkan Mergen worked for years as a paid FBI informant operating inside mob families. In 2006, he participated with mob members in an arson without alerting the FBI in time to abort the crime.
Mergen then entered into a cooperation agreement by which he would plead guilty to a Travel Act offense in connection with the arson in exchange for a Section 5K1.1 “substantial assistance” letter. One provision of the agreement tolled the statute of limitations for prosecutions resulting from Mergen’s breach and “premised upon, among other things,” his statements to the government, his testimony, or leads derived therefrom. 
When Mergen breached the agreement, the government successfully prosecuted him in the Eastern District of New York for the Travel Act offense and other crimes (drug distribution, attempted robbery, firearm possession, and related
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Monday, September 15th, 2014

Excluding Defendant’s Parents from Trial During Victim’s Testimony Did Not Violate Right to Public Trial

United States v. Ledee, No. 13-2363-cr (2d Cir. Aug. 8, 2014) (Walker, Pooler, and Wesley), available here

The defendant was convicted of crimes stemming from participating via webcam in the sexual abuse of an eight-year-old girl by her mother. At trial, the district court granted the government’s motion to close the courtroom during the victim’s testimony to all persons who were not directly involved in the trial, including the defendant’s parents.

On appeal, the defendant argued that the courtroom closure violated his Sixth Amendment right to a public trial. The Circuit, over a dissent by Judge Pooler, disagreed and affirmed. [Disclosure: Federal Defenders of New York, Inc., represents the defendant in this case.]

For a courtroom to be closed to the public in compliance with the Sixth Amendment, four requirements must be met: (1) the closure must “advance an overriding interest that is likely to be prejudiced;” (2) …

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Monday, July 28th, 2014

Cost of Incarceration Is Not a Permissible Factor In Deciding Whether To Impose Imprisonment

United States v. Park, No. 13-4142-cr (2d Cir. July 9, 2014) (Cabranes, Carney, and Droney) (per curiam), available here

Convicted of filing a false corporate tax return, Park was sentenced to three years’ probation, including six months’ home detention. The district court (Judge Block) explained that it was imposing this sentence — below the 15-to-21 month Guidelines range of imprisonment — solely because of the “government shut-down” in place at the time of sentencing.  The court said that it was not imposing imprisonment “only because of the economic plight that we are facing today.”
On the government’s appeal, the Circuit held that the probationary sentence was both procedurally and substantively unreasonable. On the procedural side, the district court erred by considering only the cost of incarceration, rather than all of the sentencing factors set forth in 18 U.S.C. § 3553(a).  Indeed, the Circuit held, the court should
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Admission of Lineup Identification of Defendant Was, At Most, Harmless Error

United States v. Reed, No. 13-0359(L) (2d Cir. June 25, 2014) (Jacobs, Calabresi, and Pooler), available here

Reed was convicted after trial of various federal charges arising from the shooting and attempted robbery of a rival drug dealer. Reed argued on appeal that the district court should have suppressed a state court lineup identification of him as the assailant, on the grounds that the lineup was conducted in violation of his Sixth Amendment right to counsel.
On appeal, the Circuit found it unnecessary to decide whether the lineup identification should have been suppressed, holding that its admission at trial was harmless beyond a reasonable doubt. The Court concluded that the independent evidence linking Reed to the shooting and robbery was overwhelming and that the jury necessarily credited the testimony of a cooperating witness identifying Reed as a participant in the charged crimes. The Court also noted that one of
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Supreme Court’s Peugh Decision Not Retroactive To Cases on Collateral Review

Herrera-Gomez v. United States, No. 14-1166 (2d Cir. June 17, 2014) (Winter, Walker, and Cabranes) (per curiam), available here

Petitioner, a federal prisoner convicted of conspiracy to distribute heroin, moved in the Circuit for leave to file a successive 28 U.S.C. § 2255 motion in the district court based on the Supreme Court’s decision in Peugh v. United States, 133 S. Ct. 2072 (2013). The Circuit, however, denied leave, holding that the rule announced in Peugh was not “a new rule of constitutional law . . . made retroactive to cases on collateral review by the Supreme Court.” 28 U.S.C. § 2255(h)(2).  
Peugh held that a “retrospective increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation.” 133 S. Ct. at 2804. In seeking leave to file a successive § 2255
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Thursday, June 19th, 2014

Evidentiary Error and Government Misconduct Required New Trial

United States v. Certified Environmental Services, Inc., No. 11-4872(L)-cr (2d Cir. May 28, 2014) (Raggi, Carney, and Rakoff), available here

Defendants, consisting of an asbestos air monitoring company, five of its employees, and an employee of an asbestos abatement contractor, were convicted collectively of 15 counts of conspiracy, mail fraud, and false statements. The charges related to a scheme to violate various state and federal environmental regulations and to certify falsely that proper air monitoring had been conducted.
The appealing defendants argued that (1) the district court improperly excluded evidence that they acted in the good-faith belief that they were complying with applicable state regulations; and (2) the prosecutors engaged in misconduct.
The Circuit agreed, holding that the district court erred by excluding the proffered evidence of good faith, and that, as the government conceded on appeal, the prosecutors committed multiple instances of misconduct throughout the trial. The misconduct
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Wednesday, June 18th, 2014

Evidence of Domestic Transactions Was Sufficient To Sustain Securities Fraud Convictions

United States v. Mandell, No. 12-1967-cr(L) (2d Cir. May 16, 2014) (Wesley,  Carney, and Wallace) (per curiam), available here 

Ross Mandell and Adam Harrington were convicted, after a jury trial, of various substantive and conspiratorial counts of securities fraud, wire fraud, and mail fraud. Mandell was sentenced principally to 144 months in prison; Harrington got 60 months.

The defendants’ central contention on appeal was that the government failed to present sufficient evidence of domestic securities transactions under Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010), and United States v. Vilar, 729 F.3d 62 (2d Cir. 2013). The Circuit disagreed, citing evidence that certain investors in certain transactions were required to submit purchase applications and payments to a company in the United States. The Court, viewing the evidence in the light most favorable to the government, held that a rational jury could have found the essential elements of …

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Circuit Issues Important New Fourth Amendment Decision

United States v. Ganias, No. 12-240-cr (2d Cir. June 17, 2014) (Hall, Chin, and Restani), available here

Yesterday, the Circuit handed down what Professor Orin Kerr has already called “a very important new Fourth Amendment case.” In an opinion by Judge Chin, the Court held that the government violates the Fourth Amendment when it indefinitely retains computer files that were seized pursuant to a search warrant but are not responsive to the warrant. For a fuller discussion of this noteworthy decision, see the article at this link.…

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Tuesday, June 17th, 2014

Court Denies En Banc Review — By One Vote

United States v. Taylor, No. 11-2201-cr(L) (2d Cir. May 23, 2014), available here

The saga of this Hobbs Act prosecution continues. In December 2013, a panel of the Court (Judges Kearse, Jacobs, and Carney) issued an opinion, available here, vacating the three defendants’ convictions relating to a conspiracy to rob a pharmacy in Manhattan. The panel ruled that the post-arrest statements of one of the defendants, Taylor, were not voluntary because he was “largely stupefied” when he made them and because his interrogators took undue advantage of his condition. Because the error was not harmless as to Taylor or as to the other defendants, the Court vacated the convictions of all three defendants. The Court found it unnecessary to decide whether the admission of Taylor’s statements against his co-defendants violated Bruton v. United States, 391 U.S. 123 (1968). 
In March 2014, the panel granted the government’s petition
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Monday, June 16th, 2014

Circuit Affirms Terrorism Conviction for Plan To Bomb New York City Subways

United States v. Medunjanin, No. 12-4724-cr (2d Cir. May 20, 2014) (Kearse, Wesley, and Droney), available here

Adis Medunjanin was convicted, following a jury trial, of nine terrorism-related crimes involving a plan to carry out coordinated suicide bombings in the New York City subway system.  He was sentenced to life plus 95 years of imprisonment.
The defendant’s sole argument on appeal was that the district court (Judge Dearie) erred by denying a pretrial motion to suppress certain of the defendant’s post-arrest statements on the grounds that questioning by the government violated his rights under Miranda v. Arizona, 384 U.S. 436 (1966), his Sixth Amendment right to counsel, and his Fifth Amendment right to substantive due process.
The Circuit affirmed. Its key holdings were:
1. Assuming Miranda rights may properly be asserted by a suspect prior to his being in custody and prior to his being questioned, the defendant
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