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Author Archive | Edward S. Zas

Tuesday, June 25th, 2019

Circuit Reverses Grant of Habeas Relief for Convicted Murderer

In Hyman v. Brown, __ F.3d __ (2d Cir. June 24, 2019), the Court reversed a judgment granting habeas corpus relief from a state murder conviction under 28 U.S.C. § 2254. Judge Raggi wrote the majority opinion, in which Judge Droney joined. Judge Jacobs concurred in a separate opinion.

The Court held that the petitioner had failed to make the “gateway showing of actual innocence” necessary to permit review of his procedurally barred claim of ineffective assistance of counsel. The Court’s reasoning is lengthy and merits the attention of anyone pursuing an “actual innocence” claim. And the news for other petitioners may not be all bad: the Court rejected the State’s argument, for example, that there are “categorical limits” on the types of evidence that can be offered to demonstrate actual innocence. Nevertheless, Hyman is a deeply troubling case: both the majority opinion and the concurrence acknowledge …

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Thursday, February 16th, 2017

Second Circuit Vacates Denial of Sentence Reduction

United States v. Melendez, No. 16-1019 (2d Cir. Feb. 16, 2007) (Leval, Calabresi, Carney).

In this summary order, the Circuit vacated the denial of a motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). The Court ruled that the district court (Judge Hurley) clearly erred in deciding that the defendant (a client of Federal Defenders) was legally ineligible for a sentence reduction. Judge Hurley ruled that the defendant was ineligible because, at the original sentencing, conducted by Judge Platt, the court had found him responsible for 44.8 kilograms of heroin, a quantity that precluded him from receiving a sentence reduction. The Circuit held, however, that Judge Platt never adopted the PSR’s finding of 44.8 kilograms or otherwise made a specific quantity finding. The court merely said that the PSR’s range was “accurately computed,” which would have been true if the quantity was anywhere above 10 kilograms. Thus, the …

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Categories: 3582(c)(2), drug quantity, guideline

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Thursday, December 1st, 2016

Supreme Court Rejects Double Jeopardy Claim

On Tuesday, in Bravo-Fernandez v. United States, the Court decided that, when a jury has returned inconsistent verdicts in a multi-count criminal case—acquittals on some counts but a conviction on another—and the conviction is subsequently vacated on appeal because of erroneous jury instructions, the double jeopardy clause does not preclude the government from retrying the defendant on the count that produced the conviction. Because “inconsistent verdicts shroud in mystery what the jury necessarily decided,” the Court ruled, the issue preclusion doctrine of Ashe v. Swenson cannot be applied.

The defendants were indicted in separate counts for federal bribery, conspiracy to commit that bribery, and traveling in furtherance of the bribery. Because the defendants conceded that they had both agreed and travelled, “the only contested issue at trial” was whether the offense of bribery had in fact been committed. At trial, the jury acquitted on the conspiracy and travel counts …

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Categories: bribery, double jeopardy

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Tuesday, July 26th, 2016

Second Circuit Updates – July 26, 2016

The Court today issued no published decisions in criminal cases but did decide one criminal matter in a summary order: United States v. Wilson, No. 15-1991-cr (2d Cir. July 26, 2016) (Pooler, Sack, and Lynch).

Wilson had been convicted of two counts: theft of government property, which carries a ten-year maximum prison term, and aggravated identity theft, which carries a mandatory consecutive prison term of two years. The district court (Judge Scullin) imposed the statutory maximum term of 12 years. The Circuit affirmed.

At sentencing, the court correctly calculated the Guidelines range of imprisonment to be 168-210 months and imposed a lower sentence, 144 months, which the Circuit found to be procedurally and substantively reasonable.

But the Circuit noted that it was “troubled” by the district court’s conduct at sentencing. In particular, the court had stated that it felt deceived by letters submitted by the defendant’s wife and father. …

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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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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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Categories: evidence, summation

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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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