Author Archive | Jason Ser

UNITED STATES V. AGUIAR, ET. AL., NOS. 11-5262-CR (L), 11-5329-CR (CON), 11-5330-cr (CON) (2D CIR. DEC. 13, 2013) (JACOBS, POOLER, AND HALL), AVAILABLE HERE

The Court in this published opinion denied defendant’s multiple claims of error by the district court arising out of Rule 12 and post-trial motions. The most predominant issue involved the government’s warrantless placement of a GPS device on the defendant’s car from January to July 2009 and whether it violated the Fourth Amendment where officers have reasonable suspicion and probable cause to execute a search.  After a detailed analysis of similar out-of-Circuit cases and identifying relevant Supreme Court precedent in existence at the time of the government’s conduct, the Court ultimately held that the good faith exception to the warrant requirement applied. 

Burlington, Vermont’s Police Department and the DEA investigated a cocaine and heroin distribution conspiracy in mid to late 2008, which included Aguiar (the defendant) as a suspect. …

UNITED STATES V. LAURIA (PAPPAS), NO. 13-269-cr (2D CIR. DEC. 10, 2013) (LIVINGSTON, CARNEY, AND KOELTL) (SUMMARY ORDER), AVAILABLE HERE

The Court in this summary order rejected for lack of jurisdiction a defendant’s appeal from a magistrate judge’s order denying various post-trial motions.  The Court noted that a magistrate judge’s general authority is derived from 18 U.S.C. § 636, which contemplates authority conferred by, among other things, referral from a district judge under certain provisions at subsection (b).  In this case, it was unclear whether referral occurred pursuant to § 636(b)(1)(A), (b)(1)(B), or (b)(3), though it did not matter.  Each provision required the district court to enter a final order, which never occurred.  Absent such a final order, the magistrate judge’s determinations were not reviewable on appeal.…

UNITED STATES V. PINNEY, NO. 12-3954-cr (2D CIR. DEC. 9, 2013) (KEARSE, JACOBS, AND STRAUB) (SUMMARY ORDER), AVAILABLE HERE

The Court in this summary order rejected the defendant’s constitutional challenge to a condition of his supervised release.  The defendant agreed to the condition being added to the terms of his release and waived his rights to a hearing and assistance of counsel prior to imposition.  At a later sentencing hearing for violating that same condition, he never objected to the condition and only asked the district court to be lenient.  The Court characterized the decision not to challenge the condition’s “obvious” constitutional infirmities prior to sentencing as tactical.  As a result, any objections to the condition were waived.…

UNITED STATES V. TAYLOR, ET. AL., NOS. 11-2201(L), 11-2426(CON), 11-2639(CON) (2D CIR. DEC. 4, 2013) (KEARSE, JACOBS, AND CARNEY), AVAILABLE HERE

This published decision vacated three defendants’ convictions for conspiracy to commit Hobbs Act robbery of a Manhattan pharmacy in 2008 and brandishing of a firearm. The Court remanded for new trials after determining that interrogating agents took undue advantage of one defendant’s diminished mental state and overbore his will in obtaining what was held to be an involuntary confession. The Court further held that admitting the tainted confession at trial, even with a limiting instruction, was not harmless beyond a reasonable doubt as to all three defendants.

According to the opinion, Vasquez drove Taylor, Rosario and a woman named Luana Miller to rob a pharmacy in Manhattan on Christmas Eve in 2008. With Miller already inside posing as a customer after hours, Rosario entered the pharmacy brandishing a gun …

UNITED STATES V. SOLTREN, NO. 12-4755-cr (2D CIR. DEC. 2, 2013) (KEARSE, JACOBS, AND PARKER) (AMENDED SUMMARY ORDER), AVAILABLE HERE

On appeal a second time from the imposition of sentence, this defendant challenged the district court’s decision to impose fifteen years’ custody with the possibility of parole after five years as procedurally and substantively unreasonable pursuant to Booker.  He pleaded guilty to conspiracy to commit air piracy and kidnapping based upon his participation in the hijacking of a 1968 Pan American Airways flight from New York to Puerto Rico.  He remained in Cuba until returning to the United States in 2009, at which time he was arrested.  The district court first sentenced him to fifteen years’ custody without the possibility of parole, which was vacated.  The Court held it was error to impose a sentence that excluded the possibility of parole because it was a benefit that was available for crimes committed in 1968.  Unfortunately for the defendant’s …

UNITED STATES V. RESTREPO, NO. 12-2246-cr (2D CIR. NOV. 27, 2013) (LYNCH, CARNEY, AND DRONEY) (SUMMARY ORDER), AVAILABLE HERE

This detailed summary order affirmed defendant’s conviction after trial for a drug related conspiracy and denied seven separate claims of error.  First, the Court disagreed with the defendant’s jury selection challenge, which alleged that the trial court erroneously instructed the jury on how to judge accomplice witness testimony.  The trial court told jurors during jury selection that all testimony, even that of accomplice witnesses, must be accorded the same weight at trial.  Though at odds with the correct standard for evaluating accomplice witness testimony, i.e., drawing the jury’s attention to the possible motivations of accomplice witnesses and instructing jurors to examine those motivations when determining credibility, the error did not prejudice the defendant.  When discussing how to judge witness testimony, the trial court also explained that the trial judge would instruct jurors about the proper …

UNITED STATES V. LEE, NO. 12-2020-cr (2D CIR. NOV. 26, 2013) (KEARSE, JACOBS, AND PARKER) (SUMMARY ORDER), AVAILABLE HERE

This defendant appealed his 235-month prison term for drug related offenses, which the district court imposed on remand from an earlier appeal.  The Court vacated an earlier judgment and remanded for re-sentencing due to the erroneous denial of a third point for acceptance of responsibility, which the defendant received.  In his second appeal, the defendant asserted procedural error based upon the district court’s refusal to hold a new Fatico hearing on marijuana quantity before re-sentencing and its subsequent imposition of more than one year’s custody despite a jurisdictionally defective indictment, which failed to identify the substance at issue.  The Court rejected both claims.

The Court held that its remand order required only a limited, not de novo, re-sentencing hearing.  The mandate did not “unequivocally” call for de novo re-sentencing and the “spirit” of the order did not clearly convey such an intent.  It vacated only …

UNITED STATES V. WHITE, NO. 12-68-cr (2D CIR. NOV. 26, 2013) (SACK, HALL, AND LIVINGSTON) (SUMMARY ORDER), AVAILABLE HERE

The defendant appealed from his 18 U.S.C. § 1001 conviction and claimed three errors.  First, he was deprived of a fair trial when the prosecutor acted as an “unsworn witness” by eliciting testimony about the prosecutor’s decision not to call the defendant as a grand jury witness in a murder investigation because the defendant falsely disavowed a prior statement to law enforcement regarding the murder.  Second, the district court delivered an erroneous materiality instruction, which told the jury that materiality depended on whether the false statement “could have influenced” the government’s decision.  The defendant argued that the proper instruction was whether the false statement “had the natural tendency to influence” that decision.  Third, the prosecutor made improper remarks during closing argument by using “we” and “our” when discussing the false statement’s impact on the government’s decisions and …

UNITED STATES V. TOMICIC, NO. 12-2653-cr (2D CIR. NOV. 22, 2013) (CALABRESE, POOLER, AND KORMAN) (SUMMARY ORDER), AVAILABLE HERE

The Court affirmed the defendant’s conviction for wire fraud and denied his claim that the government presented insufficient evidence at trial.  That evidence demonstrated that the defendant submitted what he knew to be falsified, backdated competing bids to a developer.  The defendant also knew that a dispute between the developer and insurance carrier existed.  As a result, the jury could find that the defendant knew his falsified bids would be given to the insurer.  The Court also affirmed a $90,000 restitution order and denied the defendant’s claim that an insufficient basis existed to justify the loss calculation.  Based upon the evidence, the Court could determine the loss by taking the difference between the actual cost of the work done and the amount claimed in the falsified bid.…

UNITED STATES V. BUTLER, NO. 12-5120-cr (2D CIR. NOV. 22, 2013) (POOLER, RAGGI, AND WESLEY) (SUMMARY ORDER), AVAILABLE HERE

The Court held that assets in the defendant’s name could be used to satisfy a $5 million fine and $250,000 forfeiture ordered in a securities and wire fraud conviction case and denied claims by the defendant’s wife that she had a legal right to the assets under several theories she presented as a Third-Party Appellant.  First, New York state’s “economic partnership” law did not apply to the assets because no dissolution of the marriage was pending. New York law does not require equitable distribution of assets pursuant to an “economic partnership” theory prior to a judgment dissolving the marriage. Second, the wife failed to demonstrate that the funds were held for her in a constructive trust because the evidence and her “economic partnership” claim contradicted any expectation that the funds would be returned to her.  Finally, the source …

UNITED STATES V. HIGHSMITH, NO. 13-201-cr (2D CIR. NOV. 22, 2013) (SACK, HALL, AND LIVINGSTON) (SUMMARY ORDER), AVAILABLE HERE

The Court denied this defendant’s appeal of his 15-year
sentence for distribution of 50 grams or more of cocaine and a 924(c).  The defendant argued that the district
court did not adequately consider certain 3553(a) factors and that it wrongly
doubled his sentence on the drug count from a 5-year mandatory minimum to
10-years.  On plain error review,
the Court disagreed with both claims and found the sentence procedurally and
substantively reasonable.  First,
the district court explained at the sentencing hearing that it considered the
PSR, the parties’ sentencing letters and identified various characteristics of the
defendant.  The district court also
expressly stated that it was imposing a sentence sufficient, but not greater
than necessary to comply with 3553(a). 
The 15-year sentence was substantively reasonable because it fell within the…