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Friday, January 31st, 2014

No Skilling Spree: Circuit Declines to Upset “Honest Services Fraud” Conviction Under Skilling v. United States

United States v. DeMizio, No. 12-1293 (2d Cir. Jan. 28, 2014) (Newman, Kearse, and Livingston), available here

Darin DeMizio was convicted in 2009 of conspiracy to commit honest-services wire fraud and securities fraud and of making a false statement. The government’s theory on the conspiracy count was that DeMizio caused his employer, Morgan Stanley, to conduct stock-loan transactions through intermediary firms in a manner that, at Morgan Stanley’s expense, caused large sums to be paid to DeMizio’s brother and father for little or no work. 
On appeal, the defendant argued that, under the Supreme Court’s intervening decision in Skilling v. United States, 130 S. Ct. 2896, 2931 (2010), which narrowly interpreted the scope of the federal honest-services wire fraud statute, (1) the evidence was insufficient to support his conspiracy conviction; or (2) the jury instructions were erroneous and required a new trial on the conspiracy count. 
The Circuit
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Monday, January 27th, 2014

Separate Convictions and Sentences for Two Drug Conspiracy Counts Violated Double Jeopardy

United States v. Moreno-Montenegro, No. 12-3040-cr (2d Cir. Jan. 27, 2014) (Katzmann, Winter, and Calabresi) (summary order), available here

The defendant pled guilty to one count of conspiracy to import heroin into the United States and one count of conspiracy to distribute heroin intending that it would be unlawfully imported into the United States. He was sentenced principally to concurrent terms of 78 months of imprisonment on each count, plus five years of supervised release.

On appeal, the Court held in this summary order that the district court committed plain error under the Double Jeopardy Clause by imposing separate convictions and sentences on both counts. Noting that a single agreement to commit several crimes constitutes one conspiracy, the Circuit found that the defendant in this case entered into only one conspiratorial agreement, albeit with multiple unlawful objects. Thus, he should have been convicted and sentenced for only one conspiracy, not two.

With respect …

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Court Affirms 168-Month Prison Term for Child Pornography Recipient

United States v. Melendez, No. 12-4181-cr (2d Cir. Jan. 24, 2014) (Wesley, Hall, and Chin) (summary order), available here

Convicted of one count of receiving child pornography, the defendant was sentenced to 168 months of imprisonment, the bottom of the 168-to-210 month Guidelines range. This summary order affirms the sentence as substantively reasonable.

The Court  held that the district court (Judge Bryant) carefully considered the Guidelines, weighed the facts, and imposed a sentence below what the Guidelines would have called for in the absence of a statutory maximum. The district court also found that the defendant showed little remorse for his conduct and that he was likely to re-offend. The court also found that the defendant was more than a passive recipient of child pornography. The Circuit acknowledged that a number of factors favored leniency, but held that the district court properly considered all the factors and imposed a reasonable sentence. …

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Circuit Affirms 30-Year Prison Sentence for Recidivist Robber

United States v. Needham, No. 12-5130-cr (2d Cir. Jan. 24, 2014) (Jacobs, Chin, and Droney) (summary order), available here

Convicted of 11 Hobbs Act robberies and other crimes, Needham challenged her 30-year prison term as procedurally and substantively unreasonable. This summary order affirms the sentence.

The Circuit noted that the sentencing court properly calculated the Guidelines range and considered the applicable statutory factors and the parties’ oral and written arguments (including the government’s 5K1.1 letter). Judge Pauley explained in detail how he arrived at the sentence, which represented a substantial downward departure from the Guidelines range of 660 months-to-life. “Nothing more was required.”

The Court also held that the district court properly considered the significance of the defendant’s cooperation and the seriousness of her criminal record as compared to that of a co-defendant who received a lesser sentence of 130 months. Unlike the co-defendant, who participated in 14 robberies, Needham admitted participating in approximately 40 robberies, …

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Defendant’s Sentence Properly Enhanced for Inflicting “Life-Threatening Bodily Injury”

Jordan v. United States Parole Commission, No. 12-5021-cr (2d Cir. Jan. 21, 2014) (Winter, Calabresi, and Raggi) (summary order), available here

Jordan, a treaty transfer prisoner under 18 U.S.C. § 4106A, was convicted by a Hungarian court of the rape of a woman and the attempted murder of another woman. The Hungarian tribunal sentenced him to a 14-year prison term with the possibility of conditional release after ten and one-half years. On this appeal, Jordan challenged an order of the United States Parole Commission, entered pursuant to the applicable treaty, that required him to serve 12 years in prison before release on his Hungarian convictions. This summary order affirms the sentence as procedurally and substantively reasonable. [Disclosure: the Federal Defenders of New York, Inc., represents Mr. Jordan.] 

Jordan’s principal argument on appeal was that the Parole Commission erred by calculating his Guidelines range to include a four-level enhancement for inflicting “permanent or life-threatening bodily injury” on …

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Four-Year Term of Supervised Release Was Reasonable

United States v. Paquin, No. 13-253-cr (2d Cir. Jan. 23, 2014) (Kearse, Raggi, and Korman) (summary order), available here

This summary was prepared by noted criminal defense attorney Francisco Celedonio, Esq., who is also a member of the Board of Directors of Federal Defenders of New York, Inc.:

After Paquin violated the terms of supervised release, he was sentenced to six months of imprisonment and an additional 48 months of supervised release. On appeal, he argued that the 48-month term of supervised release was procedurally and substantively unreasonable. This summary order rejects the defendant’s arguments.

 
Reviewing for “plain error” only (since Paquin failed to object in the district
court), the Circuit held that the district court’s statements at sentencing were
sufficient to establish that the court had “considered the parties’
arguments” and had a “reasoned basis for exercising its own legal decision-making
authority.” As to substantive reasonableness, the Circuit upheld the 48-month term of post-release supervision “in
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Nine-Year Sentence for Sri Lankan Terrorist Was Not Unreasonably Lenient

United States v. Thavaraja, No. 12-4330-cr (2d Cir. Jan. 23, 2014) (Walker, Livingston, and Chin), available here

This summary was prepared by noted criminal defense attorney Francisco Celedonio, Esq., who is also a member of the Board of Directors of Federal Defenders of New York, Inc.:

The government appealed a prison sentence of 108 months, arguing that it was substantively unreasonable, and that the district court (Judge Dearie)
abused its discretion in imposing a sentence substantially below the applicable
Guidelines range. The Circuit disagreed and affirmed the sentence in this published decision. 
 

Pratheepan Thavaraja, a native of Sri Lanka, pled guilty to conspiracy to
provide material support to a foreign terrorist organization and conspiracy to
bribe public officials. Defendant was the principal procurement officer for the
Liberation Tigers of Tamil Eelam (“LTTE”), a militant separatist group in
northern Sri Lanka engaged in a civil war against the Sri Lankan government.
The State Department …

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Wednesday, January 22nd, 2014

Bank Fraud Conviction Affirmed

United States v. Hoke, No. 13-615-cr (2d Cir. Jan. 14, 2014) (Jacobs, Lohier, and Droney) (summary order), available here

Hoke deposited into her own bank account a Social Security check made out to a third party. For that conduct, a jury convicted her of bank fraud and of passing a forged Treasury check. This summary order affirms her convictions.

The Court first held that the evidence was sufficient to establish Hoke’s intent to defraud under both counts. The beneficiary of the check testified that she never received the check or endorsed it. Though handwriting analysis concluded that the false signature and endorsement to Hoke was not done in Hoke’s hand, the evidence allowed a rational jury to find that Hoke knew that the check was forged. In particular, Hoke gave conflicting accounts of how she came to deposit the check, and she appeared nervous when depositing it.

The Court next held, applying plain error …

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Tuesday, January 21st, 2014

Ten-Year Prison Sentence Was a “Variance,” Not a “Departure” Requiring Notice

United States v. Moore, Nos. 12-1644-cr(L), 12-1654-cr(CON) (2d Cir. Jan. 17, 2014) (Jacobs, Lohier, and Droney) (summary order), available here

Moore appealed his 120-month prison sentence for Hobbs Act robbery and related crimes. He argued that the district court committed plain error by upwardly departing from the Guidelines range without proper notice, in violation of Fed. R. Crim. P. 32(h). He also challenged the sentence as substantively unreasonable.
The Circuit was not persuaded. First, the Court held that, though the district court alluded to a “departure” twice and never mentioned a “variance,” the sentencing transcript made clear that the district court was imposing a non-Guidelines “variance,” which required no advance notice. Indeed, the district court stated after sentencing that its references to a “departure” were mistaken, and that only a variance was intended.
Second, the 120-month sentence was not substantively unreasonable. The defendant’s history reflected multiple instances of gun
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Court Affirms 30-Month Sentence for Identification Fraud

United States v. Hatala, No. 13-613-cr (2d Cir. Jan. 15, 2014) (Calabresi, Raggi, and Droney) (summary order), available here

Convicted of fraud in connection with identification information, see 18 U.S.C. § 1028(a)(7), Hatala was sentenced to 30 months in prison. This summary order affirms the sentence as procedurally and substantively reasonable.
First, the district court properly applied a two-level enhancement for using “sophisticated means” to commit the fraud. The court found that Hatala used a sophisticated program and hacking technique to commit his crime, stole hundreds of thousands of usernames and password combinations, and deployed his extensive knowledge of computer programming and database systems to bypass professionally-designed security systems. Accordingly, the “sophisticated means” enhancement was proper. 
Second, the district court did not improperly “double count” by applying both the “sophisticated means” enhancement and other enhancements for loss and use of an access device. “Although loss amount and the use
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District Court Properly Refused to Suppress Evidence

United States v. Clark, No. 12-1221-cr (2d Cir. Jan. 17, 2014) (Newman, Winter, and Droney) (summary order), available here

This summary order holds that the district court properly refused to suppress evidence found following a 911 call. (As discussed below, the Court issued a separate, published decision in this same case reversing one of Clark’s convictions for insufficiency of the evidence.)
A 911 operator received a call from a woman in a bar saying that Chris and Jason Richardson were outside in a white Jeep Cherokee with guns and were going to attack somebody. The caller gave her first name only and did not want any responding officers to interview her. The 911 operator relayed the information to the police, who recognized the Richardsons as having been involved in prior violent crimes.
When the police arrive at the scene, they blocked the Jeep Cherokee with their patrol cars and
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