Author Archive | Edward S. Zas

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

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 …

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.…

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

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

United States v. Kerr, No. 11-5462-cr(L) (2d Cir. May 16, 2014) (Kearse, Parker, and Hall), available here

After being charged with possessing MDMA with intent to distribute, Kerr ceased communicating with  — and then fired — his two appointed attorneys, insisted on pressing several “ill-advised theories of defense,” and underwent a competency examination that ultimately found him competent to stand trial. He elected to represent himself at trial but, with the assistance of a newly appointed attorney, pled guilty midway through. After entering the plea, Kerr resumed his prior behavior: he again refused to communicate with counsel and filed numerous pro se motions to withdraw his plea and obtain new counsel. At sentencing, Kerr’s attorney expressed concern about Kerr’s mental stability; the court also commented on his belligerent behavior. Ultimately, the court sentenced him to 121 months of imprisonment.

On appeal, the Circuit affirmed. It rejected Kerr’s argument that his post-plea “erratic” …

United States v. Lockhart, No. 13-0602-cr (2d Cir. May 15, 2014) (Katzmann, Straub, and Lohier), available here

This appeal required the Court to decide the meaning of 18 U.S.C. § 2252(b)(2), which mandates a ten-year minimum term of imprisonment for a defendant who possesses child pornography and was previously convicted “under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” Specifically, does the phrase “involving a minor or ward” modify only “abusive sexual conduct,” such that a prior sexual abuse conviction involving an adult victim constitutes a qualifying predicate offense?

The Circuit said yes, and affirmed the defendant’s ten-year sentence. [Disclosure: Federal Defenders of New York, Inc., represents Mr. Lockhart.]

Lockhart pled guilty to possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B), which ordinarily carries no mandatory minimum sentence. But he had previously been convicted in a New York State …

United States v. Gill, No. 12-2207-cr (2d Cir. May 7, 2014) (Katzmann, Winter, and Calabresi), available here

Section 1326(a) of title 8, U.S.C, makes it a felony for an alien who was previously deported from the United States to reenter this country without the consent of the Attorney General to reapply for admission. But, assuming certain procedural requirements are met, a defendant may defend against the charge by challenging the fundamental fairness of the underlying deportation order.

In this case, Gill was deported to Barbados in 2004, following his conviction after trial of attempted robbery, an aggravated felony. At his deportation hearing in 1997, Gill unsuccessfully requested relief from deportation under former section 212(c) of the Immigration and Nationality Act (repealed in 1996), and he appealed to the Bureau of Immigration Appeals (BIA). The BIA dismissed the appeal, ruling that the Antiterrorism and Effective Death Penalty Act of 1996 made noncitizens with aggravated felony convictions, including Gill, ineligible for …

United States v. Yousef, No 12-4822-cr (2d Cir. Apr. 29, 2014) (Sack, Lynch, and Lohier), available here

United States v. Corbett, No. 11-3678-cr (2d Cir. Apr. 29, 2014) (Katzmann, Winter, and Calabresi), available here

United States v. Griffiths, No. 13-2102-cr (2d Cir. Apr. 25, 2014) (Cabranes, Lynch, and Lohier) (per curiam), available here