Author Archive | Edward S. Zas

Tuesday, March 18th, 2014

District Court Should Reconsider Consecutive Sentences for Aggravated Identity Theft

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

This published decision offers guidance on the procedures to be followed before a district court may impose consecutive sentences for multiple counts of aggravated identity theft, 18 U.S.C. 1028A.
Chibuko was convicted at trial of various fraud crimes, including three counts of aggravated identity theft, 18 U.S.C. 1028A. A 1028A violation carries a mandatory two-year prison sentence, to run consecutively to any other sentence imposed. But sentences imposed for multiple 1028A violations may run concurrently with each other.
Here, two of the defendant’s three 1028A violations were part of the same scheme and involved the same victim. The Guidelines provide that, in that situation, the sentences on those two counts should generally run concurrently with each other when, as here, the underlying offenses are “groupable” under USSG 3D1.2. But the
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Friday, March 7th, 2014

Divided Panel Reverses Judgment of Acquittal; Dissent Calls Ruling “Erroneous and Dangerous”

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

A jury convicted Roohid Hakimi of conspiracy and attempt to possess and distribute controlled substances. After the verdict, the district court (Judge Hurd) entered a judgment of acquittal, holding that the evidence was insufficient to establish guilt. This published opinion (authored by Judge Carney) reverses and reinstates the convictions. Judge Hall dissents.
The key issue on appeal was whether the evidence allowed a rational juror to conclude, beyond a reasonable doubt, that Hakimi knew that the bag he was poised to receive from Anderson, a co- defendant-turned-cooperator, contained drugs.
The majority said, “Yes.” It summarized its reasoning as follows:
“[T]he jury could infer that Hakimi was a trusted member of the conspiracy, and accordingly that he knew of the contents of the bag that Anderson plausibly testified she was about to
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Wednesday, March 5th, 2014

Circuit Grants Rehearing and Vacates Three Convictions Tainted by Involuntary Confession and Ineffective Redactions Under Bruton

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 …

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Monday, March 3rd, 2014

Summary Order Upholds Denial of Suppression Motion

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.…

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Erroneous Advice Concerning Deportation Consequences Prompts Circuit to Grant Writ and Vacate Conviction

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

Kovacs, an Australian national, pled guilty in 1999 to misprision of felony (18 U.S.C. § 4). His lawyer advised him at the time — and stated on the record — that the plea would have no immigration consequences. Many years later, Kovacs learned that this advice was incorrect, and that his conviction placed him at risk of detention and deportation if he ever reentered the United States.
Kovacs then sought a writ of error coram nobis in the district court, arguing that his lawyer rendered ineffective assistance of counsel by giving erroneous advice concerning the deportation consequences of pleading guilty, and that his conviction should be vacated. The district court denied the petition without an evidentiary hearing.
In this published opinion, the Circuit reversed and ordered the granting of the writ. The
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Wednesday, February 26th, 2014

Restitution Under the Mandatory Victims Restitution Act Is Improper for Harms Not Listed in the Statute

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

This important decision holds that, under the Mandatory Victims Restitution Act of 1996 (“MVRA”), 18 U.S.C. §§ 3663-64, restitution may be awarded only for the harms enumerated in the statute.
The facts were simple: Maynard and Ludwig robbed five banks between September and November 2011. At sentencing, the district court ordered the defendants to pay restitution to the banks under the MVRA. More than half of the restitution was to repay the money stolen during the robberies, and was clearly proper. But the rest included certain expenses paid by one of the banks: (1) paid time-off for the bank’s regular staff, and the pay of replacement staff; (2) mileage expenses for the replacement staff; (3) the cost of wanted posters; and (4) the cost of a temporary security guard at the bank
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Defendant’s Supreme Court Victory Did Not Entitle Him to New Trial

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

This case shows that even a Supreme Court victory isn’t always enough to help a convicted defendant.  
The police stopped Bailey about a mile from a residence that he had just departed and that was about to be searched (for drugs and a gun) pursuant to a warrant. In 2011, the Circuit upheld this stop as a lawful detention incident to the authorized search under Michigan v. Summers, 452 U.S. 692 (1981). The Supreme Court then reversed, holding that Summers‘s detention-incident-to-search rule did not apply because Bailey was not in “the immediate vicinity of the premises to be searched” when he was stopped. But, rather than ordering suppression or a new trial, the Supreme Court remanded for the Second Circuit to decide whether Bailey’s detention could be justified independently
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Thursday, February 20th, 2014

Circuit Vacates Restitution Order

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 …

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Wednesday, February 19th, 2014

Claim That Indictment Charged a “Non-Offense” Was Waived By Guilty Plea

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 …

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Tuesday, February 11th, 2014

Court Rejects Pro Se Appeal

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

Representing himself at a jury trial, the defendant was convicted, among other things, of possessing 28 grams of cocaine base with intent to distribute. On appeal, he continued to represent himself, challenging his arrest, the indictment, and several of the district court’s trial rulings.  
This summary order affirms the defendant’s convictions. The Court ruled, first, that the federal authorities had probable cause to arrest the defendant at a state correctional facility at which he was being held, and therefore did not need a warrant to do so. The Court rejected the defendant’s claim that he was arrested under a “fraudulent warrant.”
Second, the Double Jeopardy Clause did not bar the defendant’s prosecution in federal court following his arrest by state officials. “The Double Jeopardy Clause,” the Court wrote, “does
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Tuesday, February 4th, 2014

Defendant’s Consent to Computer Monitoring Was Fatal to Motion to Suppress

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

Kelly was originally arrested for failing to register as a sex offender and for illegally possessing firearms. He obtained bail after agreeing to a special condition of pretrial release that authorized the Probation Office to monitor his computers. Unfortunately for Kelly, the probation officer, upon receiving permission from the Magistrate Judge, inspected Kelly’s computer before Kelly was actually released from detention. During that inspection, the officer discovered child pornography on Kelly’s computer, resulting in additional charges against Kelly for receiving and possessing child pornography.
On appeal, the defendant argued that the search of his computer — before his physical release from detention — was beyond the scope of his consent. But the Circuit disagreed. It held that the district court did not “clearly err” in finding that the search of
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