Author Archive | Edward S. Zas

Thursday, December 26th, 2013

Pro Se Appeal Fails on All Eight Grounds


United States v. Razzoli
, No. 13-126(L) (2d Cir. Dec. 23, 2013) (Raggi, Chin, and Droney) (summary order), available here

Convicted of willfully and forcibly interfering with the performance of duties of Deputy United States Marshals, the defendant appealed pro se. The Court rejected all eight of his arguments:
First, the district court properly denied the defendant’s motion to recall prosecution witnesses for further cross-examination because he had a full opportunity to cross-examine during the government’s case and offered no explanation for failing to question the witnesses more fully at that time. 
Second, the district court properly rejected the defendant’s motion for a new trial based on the alleged destruction of evidence. The defendant did not identify what evidence was destroyed or why he was entitled to a new trial.
Third, trial counsel was not ineffective for not filing an interlocutory appeal from the district court’s denial of his
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Circuit Affirms Top-of-the-Range Sentence for Violation of Supervised Release

United States v. Morris, No. 12-4796-cr (2d Cir. Dec. 23, 2013) (Pooler, Parker, and Chin) (summary order), available here

The defendant violated supervised release by leaving the judicial district without permission. He was sentenced to 14 months of imprisonment, the top of the advisory range, and a new 22-month term of supervised release.
The Circuit held that this sentence was procedurally and substantively reasonable. First, the sentencing court did not improperly consider that the defendant left the district by using false identification, even though the defendant never specifically pled guilty to that conduct. The defendant’s use of an alias to leave the district, the Circuit held, was “relevant to the traveling violation,” and supported the district court’s conclusion that he had a “continued disrespect … [for] the law.” 
The 14-month sentence was also substantively reasonable. The district court found that this sentence was necessary to achieve “specific deterrence,” and
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District Court Did Not Commit Plain Error By Excluding Evidence of Lenders’ Negligence

United States v. Isola, No. 12-3484-cr (2d Cir. Dec. 23, 2013) (Pooler, Parker, and Chin) (summary order), available here

Convicted of wire fraud, the defendant claimed that the district court committed by plain error by not allowing him to present evidence concerning the negligence of the financial institutions he defrauded. He argued that the evidence was relevant to the materiality element of wire fraud. The Circuit disagreed, holding that “evidence of a particular lender’s unreasonableness is irrelevant to the materiality of Isola’s false statements because materiality is an objective question.”
The Circuit also rejected the defendant’s arguments that his 37-month prison sentence was procedurally and substantively unreasonable. First, the Court disagreed with the defendant’s claim that the sentencing court  improperly conflated the standard for a below-Guideline “variance” with the stricter standard for a downward “departure.” Second, the Court held that the sentence — the bottom of the Guidelines range
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Wednesday, December 25th, 2013

Evidence of Drug Trafficking in Arizona Was Admissible Against Defendant Charged With Conspiring to Distribute Drugs in Vermont “and Elsewhere.”

United States v. DeLaRosa, No. 12-4188-cr (2d Cir. Dec. 20, 2013) (Cabranes, Wesley, and Livingston) (summary order), available here

DeLaRosa was convicted of conspiring with John Brooker and others to distribute drugs in Vermont “and elsewhere” from 2006 to “on or about June 16, 2009.” On appeal, he argued principally that the district court erred by admitting evidence of drug trafficking in Arizona that took place after Brooker’s arrest on June 16, 2009.
The Circuit held that the evidence was properly admitted. The evidence was not offered to prove  prior bad acts under Fed. R. Evid. 404(b), but rather as direct evidence of the single drug-trafficking conspiracy orchestrated by DeLaRosa. Trial testimony showed that the conspiracy’s goal was to acquire narcotics from distributors in New York, Florida, and Arizona and to deliver the drugs to customers in Vermont, New York, and Massachusetts. The conspiracy did not end just because
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Evidence Sufficient To Support Drug Conspiracy Conviction

United States v. Gonzalez, No. 12-5075-cr (2d Cir. Dec. 20, 2013) (Pooler, Parker, and Wesley) (summary order), available here

Gonzalez was convicted of conspiracy to distribute and possess with intent to distribute cocaine base. He argued on appeal that the evidence was insufficient to prove his guilt. But the Circuit affirmed, holding that the testimony of three witnesses reasonably established the defendant’s agreement with others to distribute cocaine base. An undercover officer testified that, on various occasions when he purchased crack from persons other than Gonzalez, the defendant played a significant role in approving the drug sales. Also, a cooperating witness testified that when she would order crack from Gonzalez someone else would deliver the drugs to her. Another witness testified that she saw Gonzalez assist in the preparation for cooking powder cocaine into crack, and in weighing the crack alongside a narcotics supplier on a scale Gonzalez had
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Failure to Order Competency Hearing Was Not Abuse of Discretion

United States v. Harry, No. 12-3623-cr (2d Cir. Dec. 19, 2013) (Pooler, Parker, and Wesley) (summary order), available here

Convicted of threatening to harm the family of a United States Probation Officer, the defendant was sentenced principally to 46 months of imprisonment. He argued on appeal that the district court should have ordered a competency hearing in response to his erratic behavior. He also claimed that the court improperly excluded certain evidence at trial.
The Circuit affirmed. First, it held that, though the defendant was indisputably mentally ill, the district court was not required to hold a competency hearing. The record showed that the court properly assured itself that the defendant had an understanding of the proceedings and was fully able to participate in his defense. 
The Court also upheld the district court’s decision to exclude from evidence certain voicemail messages, which included discussions of the defendant’s participation in
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Tuesday, December 10th, 2013

Defendant Knowingly and Voluntarily Waived Right to Appeal

United States v. Coston, No. 12-4622-cr (2d Cir. Dec. 10, 2013) (Katzmann, Winter, and Calabresi), available here

Nothing new here: This per curiam decision merely holds that the defendant knowingly and voluntarily waived his right to appeal and that his appeal waiver is therefore enforceable.
In his plea agreement, the defendant promised not to appeal any prison sentence of 120 months or less, including any related issues with respect to the Sentencing Guidelines or the reasonableness of the sentence imposed. Though the defendant was sentenced to just 27 months of imprisonment, he appealed anyway, contending that the appeal waiver was either void or unenforceable.
The Circuit rejected the defendant’s claims, holding that, in exchange for valid consideration, the defendant made a knowing, voluntary, and competent waiver of his appellate rights. No evidence showed that the sentence was reached in a manner that the plea agreement did not anticipate or
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Refusal to Quash Grand Jury Subpoenas Directed at Third Parties Is Not Immediately Appealable

United States v. Punn, No. 13-2780-cr (2d Cir. Dec. 6, 2013) (Pooler, Lynch, and Droney), available here

Today’s summary comes courtesy of Francisco Celedonio, a noted criminal defense attorney and member of the Federal Defenders’ Board of Directors:

Punn holds that an order denying a motion to quash grand jury subpoenas directed at third parties (on the ground that the subpoenas were issued solely to prepare for trial) is not immediately appealable.
A federal grand jury investigating Punn issued subpoenas seeking the testimony of Punn’s two adult children. The subpoenas were issued while Punn’s criminal case was at the motions stage. Punn moved to quash the subpoenas, arguing that they were issued for an improper purpose (assisting the government in its trial preparation). The district court denied the motion to quash, as well as a motion to reconsider, on the grounds that Punn lacked standing to raise constitutional issues
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Monday, December 9th, 2013

Conspiracy Charges Barred by Statute of Limitations

United States v. Grimm, et al., Nos. 12-4310-cr; 12-4365-cr; 12-4371-cr (2d Cir. Dec. 9, 2013) (Kearse, Jacobs, and Straub), available here

As we previously reported (at this link), on November 26, 2013, the Court issued a one-page order reversing the conspiracy convictions of Peter Grimm, Dominick Carollo, and Steven Goldberg. The order stated that an opinion would follow in due course. This is the promised opinion, in which the Court ruled, by a two-to-one vote, that the indictment was barred by the applicable statutes of limitations.
The three defendants, employees of General Electric Company (“GE”), conspired to fix below-market rates on interest paid by GE to municipalities. The conspiracy depressed the interest rate on the payments made to the municipalities by GE, an unindicted co-conspirator.
The appeal turned on whether the artificially reduced payments by GE to the municipalities constituted “overt acts” in furtherance of the conspiracy. If
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Tuesday, December 3rd, 2013

Supervised Release Condition Infringing Parental Rights Required Remand

United States v. McGeoch, No. 12-5012-cr (2d Cir. Dec. 3, 2013) (Walker, Cabranes, and Parker) (summary order), available here

The defendant was convicted of using a facility of interstate commerce to persuade a 15-year-old and a person he believed to be a 13-year-old to engage in illegal sexual activity. He was sentenced principally to 151 months of imprisonment and twenty years of supervised release. One of the “special conditions” of supervised release prohibited the defendant from having unsupervised contact with persons under the age of 18, including his two minor sons.
On appeal, the defendant first argued that the district court erred by adding five offense levels to his guidelines range under U.S.S.G. § 4B1.5(b), based on “a pattern of activity involving prohibited sexual conduct.” The Circuit disagreed, holding that the defendant engaged in “prohibited sexual conduct” on “at least two separate occasions,” thus establishing the requisite “pattern.” The
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District Court Properly Denied Motion to Suppress

United States v. Cardona, No. 12-4612-cr (2d Cir. Dec. 3, 2013) (Kearse, Jacobs, and Parker) (second amended summary order), available here

Convicted after trial of cocaine trafficking, the defendant argued on appeal that the district court should have suppressed various pieces of evidence because his arrest and the ensuing search of his vehicle lacked probable cause. The Circuit disagreed, holding that law enforcement officers properly relied on information provided by another man, Morales-Gomez, who claimed (upon being arrested for drug possession) that he was to deliver 30 kilograms of cocaine to the defendant. Though the officers had not previously worked with Morales-Gomez, they verified many details of his account, including his description of the defendant, the defendant’s nationality, the specifics of the defendant’s criminal record, as well as where he lived and what car he drove. The corroboration of these “innocent” details, the Court wrote, gave sufficient reason to
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