Archive | sufficiency

Tuesday, April 20th, 2021

Second Circuit upholds conviction for insider trading. United States v.  Chow, No. 19-0325, __F.3d__, 2021 WL 1256649 (2d Cir. Apr. 6, 2021) (C.J.J. Kearse, Carney, Bianco).

Benjamin Chow was a high ranking corporate officer at a couple of Chinese State-owned firms that, in 2016, tried to acquire Lattice Semiconductor Corporation, a manufacturer of a type of semi-conductor used in smart-phones. Op. 4, 5. Mr. Chow was alleged to have tipped off someone he knew, named Michael Yin, about the progress of the negotiations to acquire Lattice. Op. at 4-9 . During a 4-month period from July to November 2016, Yin traded on Lattice stock, purportedly based on this information, and made $5 million. Id. at 15.

A jury convicted Benjamin Chow of one count of conspiracy to commit securities fraud, in violation of 18 U.S.C. § 371; one count of securities fraud, in violation of 18 U.S.C. §§ 1348 and 2; and six counts of insider trading, in violation of 15 U.S.C. §§ 78j(b) and 78ff, 17 C.F.R. §§ 240.10b-5 and 10b5-2, and 18 U.S.C. § …


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Categories: insider trading, jury instructions, sufficiency, venue

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Wednesday, December 16th, 2020

Second Circuit affirms conviction for conspiracy to distribute synthetic cannabinoids, under the Analogue Act, 21 U.S.C. § 813(a). United States v Requena, 980 F.3d 30 (2d Cir. Nov. 4, 2020) (Livingston, Chief Judge; Kearse and Walker, Circuit Judges).

Defendants Brian Racine and Andrew Raymond ran a business producing and selling synthetic marijuana between 2013 and 2015. At the time, “synthetic” cannabinoids weren’t listed on the federal controlled substances schedules. Instead, the government charged that these substances were “controlled substance analogues” under the Controlled Substance Analogue Enforcement Act of 1986 (“Analogue Act”), 21 U.S.C. § 813. See 980 F.3d at 35-36.

“The Analogue Act identifies a controlled substance analogue as a substance with chemical and pharmacological properties substantially similar to those of a substance listed on schedule I or II, 21 U.S.C. § 802(32), and directs, in part, that these substances—if intended for human consumption—be treated[ ] for the purposes of any Federal law as a controlled substance in schedule I[.]” Requena, 980 F.3d at 35 (citing id. § 813(a)). “In turn, 21 U.S.C. § 841(a)(1) and (b) (1)(C) prohibit the distribution of schedule I controlled substances and …


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Categories: mens rea, sufficiency, vagueness

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Monday, July 29th, 2019

Circuit Affirms Convictions and Sentences for Bitcoin-Related Fraud

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 …

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Thursday, May 23rd, 2019

The New Go-To Ruling on Insufficient Evidence

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 …

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Friday, September 29th, 2017

Abu Ghayth and the Material Support Statute

In a summary order, the Second Circuit upheld the convictions of Sulaiman Abu Ghayth (a son-in-law of Osama Bin Laden) for offenses including conspiracy to murder Americans and providing material support for terrorist activities.  The outcome is unsurprising, but the decision nevertheless offers some hope for differently situated defendants charged under the material support statute, 18 U.S.C. § 2339A.

The order, available here, serves as a troubling reminder of the potential breadth of the material support statute. Abu Ghayth’s material support conviction was based on his speeches in the wake of September 11 urging Muslims to fight for Al Qaeda and threatening attacks on “new American targets.” Slip op. at 8. The Circuit rejected a sufficiency-of-the-evidence challenge to this conviction, and observed that “speech alone” can serve to establish a material support violation. Id. at 7 (quoting United States v. Rahman, 189 F.3d 88, 116-17 (2d Cir. 1999)). …


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Categories: aiding and abetting, conspiracy, jury charge, jury instructions, material support statute, plain error, prejudice, sufficiency, summary order, terrorism

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Thursday, June 16th, 2016

Defendants bat 0-3 in the Circuit today

The Second Circuit issued three summary orders in criminal cases today.

In United States v. Clare, 15-1601, the Court affirmed the defendant’s conviction on marijuana and gun charges.  Clare argued that the evidence at trial was insufficient to sustain the convictions, primarily because the cooperating witnesses were not credible. The Court rejected this argument, explaining that “the credibility of witnesses is within the province of the jury, not this Court.”  Order at 2.  In light of the remaining evidence, the Court held that a reasonable juror could have concluded that Clare was guilty beyond a reasonable doubt.  Because the evidence was sufficient, Clare’s attorney was not ineffective in failing to move for a judgment of acquittal in post-trial briefing.  The Court also affirmed the district court’s denial of a motion to suppress.

In United States v. Washington, 14-4740, the Circuit rejected the defendant’s assertion that he had been …


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Categories: comptency, sentencing, sufficiency

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Thursday, May 26th, 2016

No Wins for Criminal Defendants Today

The Court issued two summary orders in criminal cases today. Neither Appellant prevailed.

  1. United States v. Humphries, No. 14-985-cr (2d Cir. May 26, 2016) (Cabranes, Straub, and Lohier)

Humphries was convicted after a jury trial of interstate travel in aid of racketeering, conspiracy to commit wire fraud to defeat Canadian tax revenue, conspiracy to manufacture tobacco products without a license, and money laundering. He was sentence to 72 months in prison.

On appeal, Humphries raised four arguments: (1) insufficiency of the trial evidence; (2) improper preclusion of certain affirmative defenses; (3) constructive amendment of the indictment; and (4) improper failure to suspend jury deliberations when it became “apparent” that he was no longer competent to stand trial. The Court addressed only the sufficiency argument, rejecting the other three claims without discussion.

The Court first held that the evidence was sufficient to establish Humphries’s intent to “distribute the proceeds of …


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Categories: criminal history, sufficiency, supervised release

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Monday, May 2nd, 2016

Conviction May Be Sustained upon the Uncorroborated Testimony of a Single Accomplice

In United States v. Fernandez et al., Docket No. 14-4158-cr (L), a summary order issued today, the Circuit principally reaffirms the longstanding rule that “a conviction can be sustained on the basis of testimony from a single accomplice, so long as the testimony is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt.” Order at 3 (citing United Sates v. Diaz, 176 F.3d 52, 92 (2d Cir. 1999)). Fernandez’s conviction (for conspiring to commit murder-for-hire, and for using a firearm to commit murder in furtherance of that conspiracy) was secured principally on the testimony of his cousin and co-defendant Darge. Testifying pursuant to a cooperation agreement, Darge told the jury that members of the Minaya drug organization hired him to murder two of its drug suppliers (Cuellar and Flores) for $180,000; that he recruited his cousin Fernandez to help him with the …

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Categories: credibility, sufficiency

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Categories: credibility, sufficiency

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Wednesday, April 20th, 2016

Circuit Affirms Convictions of Madoff Co-Conspirators

The Circuit issued no published criminal decisions today. But it did issue three summary orders, including a 30-page decision (does that still qualify as a “summary” order?) affirming the fraud-related convictions of five former employees of Bernie Madoff’s investment company.

  1. United States v. Bonventre, No. 14-4714-cr(L) (2d Cir. Apr. 20, 2016) (Walker, Raggi, and Droney)

Five former employee of Bernard L. Madoff Investment Securities were convicted after trial of multiple counts of conspiratorial and substantive securities fraud, bank fraud, and related charges for their participation in a massive scheme to defraud thousands of investors of tens of billions of dollars. On appeal, the defendants challenged various trial court rulings, the sufficiency of the evidence, the government’s trial conduct, and the judgments of forfeiture. The Court rejected all of their claims.

Bill of Particulars

First, the Court held that the district court did not err by denying a request for …


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Categories: evidence, forfeiture, government misconduct, joinder, sufficiency

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Wednesday, March 2nd, 2016

A Rare Sufficiency Win, On Transaction Structuring Counts

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 …

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Saturday, November 17th, 2012

On Bank

United States v. Gyanbaah, No. 10-2441-cr (2d Cir. November 8, 2012) (Winter, Lynch, Carney, CJJ)

The appellant here was part of a group that, for more than three years, stole names and other identifying information, then used it to file thousands of fraudulent tax returns in those victims’ names. The group expected that about half of the refunds would be approved; having sought $2.2 million in refunds, they actually received more than $500,000. When they received a refund check, one of the fraudsters would forge the payee’s signature and endorse the check over to a group member, who would deposit the check into a controlled bank account and withdraw the money. 

Gyanbaah, the particular appellant here, was linked to deposits at three different banks and nearly seventy fraudulent tax returns.  A jury convicted him of five counts, including, in relevant part, one count of bank fraud and one …


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Categories: bank fraud, intent, sufficiency, Uncategorized

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