Author Archive | Edward S. Zas

United States v. Chibuko, No. 12-0039-cr (2d Cir. Mar. 7, 2014) (Katzmann, Kearse, and Wesley) (per curiam), available here

United States v. Anderson (Hakimi), No. 11-5364-cr (2d Cir. Mar. 4, 2014) (Hall, Carney, and Scheindlin), available here

United States v. Taylor, Nos. 11-2201(L), 11-2426(CON), 11-2639(CON) (2d Cir. Mar. 4, 2014) (Kearse, Jacobs, and Carney), available here

In this published decision, the Circuit granted the government’s petition for panel rehearing and withdrew its original opinion vacating the convictions of all three defendants. Unfortunately for the government, the Court, on rehearing, not only again vacated the defendants’ convictions, but expanded its rationale for doing so. [Disclosure: the Federal Defenders of New York, Inc., represents one of the defendants in this case.]

All three defendants were convicted of charges related to the robbery of a Manhattan pharmacy. The Court’s original opinion (issued on December 4, 2013) vacated the convictions, holding that the admission of the main defendant’s involuntary confession was prejudicial to all three defendants. The Court found the confession so critical to the government’s case, and so essential to buttressing the credibility of the cooperating accomplice, that it prejudiced the co-defendants as well. Thus, the Court found it unnecessary …

United States v. Lee, No. 13-1432-cr (2d Cir. Feb. 27, 2014) (Wesley, Droney, and Abrams) (summary order), available here

This summary was provided by noted criminal defense lawyer Francisco Celedonio, who is also a member of the Board of Directors of Federal Defenders of New York, Inc.:

In this summary order, the Circuit upheld a decision of the district court (Judge Scullin) denying a motion to suppress. The district court found a confidential informant sufficiently reliable (based on detailed information that was corroborated)  to provide officers with reasonable suspicion to stop a vehicle. Given the reliability of the CI’s tip (which suggested the defendant was armed), the officers also had a basis to search the defendant upon stopping the vehicle.…

Kovacs v. United States, No. 13-0209 (2d Cir. Mar. 3, 2014) (Kearse, Jacobs, and Parker), available here

United States v. Maynard, No. 12-5106-cr (2d Cir. Feb. 24, 2014) (Kearse, Jacobs, and Parker), available here

United States v. Bailey, No. 07-3719-cr (2d Cir. Feb. 21, 2014) (Cabranes, Pooler, and Raggi), available here

United States v. Lochard, No. 12-5115-cr (2d Cir. Feb. 19, 2014) (Chin, Carney, and Droney) (summary order), available here

Convicted of access device fraud, the defendant was sentenced to 36 months of imprisonment and ordered to pay about $108,000 in restitution. The judgment did not set forth a payment plan or provide for the waiver of interest. A month after he was sentenced, the incarcerated defendant received a letter from the government advising him that the full amount of restitution was due immediately and that interest would accrue on any unpaid balance.

The defendant wrote to the district court seeking a payment schedule and modification of the judgment, but the court denied the requests. He then appealed.

Three issues were presented on appeal: (1) whether the appeal was time-barred; (2) whether the district court had jurisdiction to consider the defendant’s motion to modify; and (3) whether the district court abused …

United States v. Rubin, No. 12-3777-cr (2d Cir. Feb. 19, 2014) (Cabranes, Hall, and Chin), available here

Rubin was charged principally with conspiracy to violate the Unlawful Internet Gambling Enforcement Act of 2006 (“Gambling Act”). He pled guilty under an unconditional, written plea agreement, and was sentenced to 36 months of imprisonment.

On appeal, the defendant argued that he was convicted of a “non-offense” when he pled guilty because the indictment did not charge him with conspiring in the business of “betting or wagering;” it alleged only that he handled gambling funds, conduct which, he claimed, was exempt from prosecution under the Gambling Act.

The Circuit held that, even assuming that the indictment charged a “non-offense,” Rubin’s guilty plea waived his right to challenge this purported defect in the indictment. The Court reasoned that, under the Supreme Court’s decision in United States v. Cotton, 535 U.S. 625 (2002), the …

United States v. Faison, No. 12-5006-cr (2d Cir. Feb. 10, 2014) (Leval, Calabresi, and Lynch) (summary order), available here

United States v. Kelly, No. 12-4185-cr (2d Cir. Feb. 4, 2014) (Walker, Livingston, and Chin) (summary order), available here