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

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 …

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 …

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

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

United States v. Viloski, No. 12-265-cr (2d Cir. Feb. 4, 2014) (Walker, Cabranes, and Parker) (summary order), available here

UNITED STATES V. OSUALA, NO. 12-3573 (2D CIR. FEB. 3, 2014) (CABRANES, LIVINGSTON, AND CARNEY) (SUMMARY ORDER), AVAILABLE HERE

This defendant appealed from convictions for obstructing administration of the IRS, subscribing to false and fraudulent income tax returns, and aiding and assisting the preparation of false individual tax returns.  He claimed expiration of the six-year statute of limitations precluded Indictment and that the district court imposed an unreasonable sentence after considering tax returns that were not a basis for conviction.  Both arguments failed.

First, the defendant failed to raise any statue of limitations claim before the district court.  Thus, he waived the argument on appeal.  Nevertheless, the claim failed on the merits according to the Court.  The limitation period runs from the filing deadline for the relevant tax returns rather than the date on which the return was actually submitted.  As to the obstruction allegations, such a charge is within the limitations …

UNITED STATES V. WILLIAMS, JOHNSON, AND JONES, NOS. 12-2314(L), 12-2454-cr(CON), 12-2650(CON) (2D CIR. FEB. 3, 2014) (KATZMANN, WESLEY, AND CHIN) (SUMMARY ORDER), AVAILABLE HERE

In this case, a jury convicted two defendants (Johnson and Jones) after trial for multiple counts of bank fraud and aggravated identity theft, as well as conspiracy to commit bank fraud.  A third defendant (Williams) pleaded guilty to one count of each of these offenses, entered into a cooperation agreement, and testified against Johnson and Jones.  The district court imposed sentences of 264 and 240 months’ imprisonment for Johnson and Jones respectively, and 109 months’ custody for Williams.  Jones challenged the sufficiency of the evidence against him at trial.  All three defendants challenged their sentences as procedurally and substantively unreasonable.  The Court denied all claims.

In his sufficiency of the evidence claim, Jones argued that his mere presence did not make him a member of the conspiracy and that …

United States v. Chervin, No. 13-631-cr (2d Cir. Jan. 30, 2014) (Kearse, Pooler, and Raggi) (summary order), available here

UNITED STATES V. FAILING, NO. 10-3330-cr (2D CIR. FEB. 3, 2014) (KATZMANN, WESLEY, AND LOHIER) (SUMMARY ORDER), AVAILABLE HERE

In this case, the defendant was convicted after trial of conspiracy to possess methamphetamine with intent to distribute.  He received 77 months’ custody.  On appeal he challenged the district court’s admission of out-of-court statements by a co-conspirator pursuant to Federal Rule of Evidence 801(d)(2)(E) and argued that their admission violated his Confrontation Clause and due process rights.  He also challenged his sentence as procedurally and substantively unreasonable claiming that the district court refused to consider arguments regarding his methamphetamine addiction.  All of these claims failed.

First, no error occurred as a result of admitting the co-conspirator’s statements.  To be admissible pursuant to Rule 801(d)(2)(E), the district court must find by a preponderance of evidence that the statement was made in furtherance of the conspiracy.  The district court did not err by admitting the statements, …

UNITED STATES V. JOHNSON, NO. 12-3328-cr (2D CIR. FEB. 3, 2014) (POOLER, RAGGI, AND SCHOFIELD) (SUMMARY ORDER), AVAILABLE HERE

Post-conviction for wire fraud and bank fraud, the defendant in this appeal challenged his sentence as procedurally unreasonable and challenged the sufficiency of the evidence to his intent to commit bank fraud pursuant to 18 U.S.C. § 1344.  The district court calculated the loss amount by taking 30 percent of the total mortgage price of certain properties purchased, including those by two co-defendants.  Because the defendant never challenged the presentence report’s method of calculating loss and in his sentencing letter specifically contemplated guidelines that included losses incurred by the co-defendants, he waived any factual challenge on appeal.  As to his sufficiency of the evidence claim, the defendant argued that the government failed to prove that the banks lost anything of value.  The Court reconfirmed the Circuit’s reading of the bank fraud statute “expansively” and noted …