Archive | sufficiency

In United States v. Lebedev, No. 17-3691(L) (2d Cir. July 26, 2019), defendants Lebedev and Gross challenged their convictions, after a jury trial, of multiple counts arising from their roles in the operation of a Bitcoin exchange and a scheme to use a federal credit union for illegal purposes. Gross also challenged the application of several Sentence Guidelines provisions in imposing his sentence and his order of restitution. The Circuit affirmed.

First, the Court rejected Lebedev’s challenge to the sufficiency of the evidence. The evidence was sufficient to establish wire fraud, the Court held, because a reasonable jury could conclude, inter alia, that Lebedev deprived the victims (certain financial institutions) of “the right to control their assets by mispresenting potentially valuable economic information.” Similarly, the evidence was sufficient to establish bank fraud because a reasonable jury could conclude that Lebedev (1) caused false information to be sent to …

Oh, insufficient evidence– so hard to show in district court after a jury convicts, harder still on appeal with all the “deference” shown to the government.  Yet both were done in United States v. Pauling, where the government sought an enhanced charge and punishment based on five words spoken by neither the defendant nor his co-conspirator.

John Pauling was alleged to have agreed with a supplier named “Low” to sell 100 grams of heroin.  There was proof as to 89 grams, but the government needed 11 more.  So it offered the jury a wiretapped call between Pauling and some guy named “Steve” in which Steve said he wanted “same thing as last time” and referenced the “14th floor.”  The government argued that meant Pauling would get 14 more grams of heroin from Low and sell them to Steve, which would put the total of the Pauling-Low conspiracy over 100 …

United States v. Taylor, No. 14-360-cr (March 2, 2016) (Droney, with by Pooler and Lohier)

The Circuit affirmed a cocaine conspiracy conviction over a constructive amendment claim, but vacated a conviction for transaction structuring on sufficiency grounds, holding that no rational juror could have found the requisite intent to evade currency reporting requirements just from the handful of suspicious transactions introduced at trial.

Taylor, a leader of the Buffalo chapter of the Afro Dogs Motorcycle Club, was charged with a conspiracy involving 5+ kilograms of cocaine — 21 U.S.C. § 841(b)(1)(A) quantity — and several counts of transaction structuring. The jury found him guilty of conspiracy, but indicated on the special verdict form that the conspiracy involved only 500+ grams of cocaine — 21 U.S.C. § 841(b)(1)(B) quantity.  On appeal, Taylor argued that “this conviction, based on an amount of cocaine less than that charged in the indictment, constituted …