Navigation

Federal Defenders of New York Second Circuit Blog


Wednesday, May 4th, 2016

Second Circuit: Conviction for Investment Adviser Fraud Requires Only Intent To Deceive, Not Intent To Harm

In United States v. Tagliaferri, No. 15–536, the Second Circuit held that a conviction for investment adviser fraud, under section 206 of the Investment Advisers Act of 1940, 15 U.S.C. § 80b–6 and 80b–17, requires only intent to deceive one’s clients, not intent to harm them as well.

Tagliaferri ran a boutique investment advisory firm where, the government alleged, he engaged in various deceptive practices, including taking kickbacks for investing client funds with particular entities, cross-trading between client accounts, and falsely characterizing investments as loans. The government charged Tagliaferri with, among other offenses, investment adviser fraud under section 206. At trial, Tagliaferri’s defense was that, despite his deceptive practices, he “always believed that he would be able to work things out so that his clients would not be harmed.” Accordingly, he sought a jury instruction that investment adviser fraud requires not only intent to deceive one’s clients, but …

Posted by
Categories: fraud, intent, Uncategorized

Posted By
Categories: fraud, intent, Uncategorized

Continue Reading
Tuesday, May 3rd, 2016

Second Circuit affirms above-guideline sentence; declines to consider one IAC claim on direct review, but rejects another where record below was sufficiently developed on the point

In United States v. Pendergrass, 15-1965, the Second Circuit affirmed the conviction of Terrence Pendergrass, a former captain at Rikers Island, on one count of willfully violating the constitutional rights of an inmate, who died following the ingestion of cleaning supplies, by refusing to get him medical attention and prohibiting other guards from getting him medical attention.  Pendergrass raised three issues:  that he received ineffective assistance of counsel at trial, that the District Court improperly instructed the jury regarding willfulness and conscious avoidance, and that his above-guideline sentence was unreasonable.

With respect to the ineffective assistance of counsel claims, the Court declined to consider Pendergrass’s first claim (that Pendergrass’s attorney was ineffective because he failed to call witnesses that would have been material to the defense) because the record with respect to the witnesses’ potential testimony was insufficiently developed to be considered on direct review.  The Court did reach …

Posted by
Categories: conscious avoidance, ineffective assistance of counsel, jury charge, substantive reasonableness, willful causation

Posted By
Categories: conscious avoidance, ineffective assistance of counsel, jury charge, substantive reasonableness, willful causation

Continue Reading
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 …

Posted by
Categories: credibility, sufficiency

Posted By
Categories: credibility, sufficiency

Continue Reading

Second Circuit rejects claims that District Court erred in limiting cross-examination of prosecution witness and committed various procedural errors at sentencing.

United States v. Rodriguez, No. 14-4267 (2d Cir. Apr. 27, 2016) (Leval, Droney, and Engelmayer).

Rodriguez was convicted by a jury of charges of racketeering conspiracy and conspiracy to distribute narcotics. He argued on appeal that the district court erred by disallowing certain cross-examination of a key prosecution witness, and that the district court committed various procedural errors at sentencing. The Court affirmed.

(a) Cross-examination.

Before trial, the government moved to preclude the defense from cross-examining a key government witness at trial about certain sexual offenses he had committed. Defense counsel argued that the evidence bore upon the witness’s credibility but the district court excluded it under Fed. R. Evid. 403.

The Circuit held that the district court had properly balanced the relevant factors under Rule 403 and had noted that the witness disclosed his sexual misconduct to the government, which undermined the defense’s argument that his sexual …

Posted by
Categories: Rule 403, sentencing, Uncategorized

Posted By
Categories: Rule 403, sentencing, Uncategorized

Continue Reading
Wednesday, April 27th, 2016

In Summary Order, Second Circuit rejects claims that bank records and tax returns erroneously were admitted into evidence, that the government improperly interfered with defense access to witnesses, and that the government made improper statements during summation.

United States v. Tavarez, No. 15-1395 (2d Cir. Apr. 27, 2016) (Katzmann, Cabranes, and Kaplan).

Tavarez was convicted after a jury trial of one count of conspiracy to distribute and possess with intent to distribute cocaine. He argued on appeal that: (1) the district court abused its discretion by admitting Tavarez’s bank records and tax returns into evidence; (2) the government impaired his right to a fair trial by improperly interfering with his access to witnesses, including by not granting them use immunity; and (3) the government’s statements during summation denied him a fair trial. The Court rejected all three claims.

First, the Court agreed with the district court that Tavarez’s bank records were relevant and that their probative value was not outweighed by any risk of unfair prejudice. The evidence showed that Tavarez deposited and withdrew large sums of cash at relevant times, despite reporting no income or …

Posted by
Categories: evidence, summation

Posted By
Categories: evidence, summation

Continue Reading
Tuesday, April 26th, 2016

New RDAP Rules

Below is a message from Denise Barrett from the National Sentencing Resource Counsel Project reporting on new rules relating to the Bureau of Prisons’ Residential Drug Abuse Program (RDAP).

The BOP changed some of the RDAP rules.  They are published in the federal register and take effect May 26, 2016.

Unfortunately, BOP has retained the provision that prohibits early release for persons convicted of certain crimes (e.g. possession of a firearm).  It did, however, change the rules on prior convictions such that violent offenses older than ten years do not make the person ineligible for early release.

A substantive change was made to the rules governing  expulsions from the RDAP program.  Those who committed acts involving alcohol or drugs, violence or threats of violence, escape or attempted escape, or any 100 level series incident, are no longer subject to expulsion. 

Below is a link to the federal register, which has

…
Posted by
Categories: BOP

Posted By
Categories: BOP

Continue Reading
Friday, April 22nd, 2016

Second Circuit Updates – April 22, 2016

After this week’s Supreme Court decision in Welch v. United States, — S. Ct. –, slip op. (April 18, 2016) (No. 15-6418), which found that Johnson v. United States, 135 S. Ct. 2551 (2015) is retroactive to those serving Armed Career Criminal sentences, the next big question is whether the rule in Johnson will apply retroactively to career offender guidelines cases. (Quick reminder: Johnson struck down the “residual clause” in ACCA as void-for-vagueness. Identical or nearly-identical language to the residual clause pops up in many other sentencing statutes and guidelines). Welch gives some cause for hope. In an amicus brief filed yesterday in support of petitioner Alfrederick Jones for a writ of certiorari to the Supreme Court (Alfrederick Jones v. United States, No. 15-8629), the Federal Public and Community Defenders and the National Association of Federal Defenders laid out the case for why the Supreme Court …

Posted by
Categories: ACCA, career offender, crime of violence, guideline, retroactivity

Posted By
Categories: ACCA, career offender, crime of violence, guideline, retroactivity

Continue Reading
Thursday, April 21st, 2016

Second Circuit “Disturb[ed] That District Courts Do Not Routinely Follow” Rule 11

rule 11 meme

Today in United States v. Pattee, the Second Circuit (Calabresi, Lynch, Lohier, CJJ.) found it “disturbing that district courts do not routinely follow the minimal procedures put in place to protect defendants’ rights.”

In accepting a guilty plea to producing, distributing and possessing child pornography, the district court (Geraci, Ch.J.) failed to advise the defendant of “five of the approximately fifteen rights” listed in Federal Rule of Criminal Procedure 11.  The Circuit found this troubling, as the “Court has stated time and again that [w]e have adopted a standard of strict adherence to Rule 11” and that “compliance with Rule 11 is not a difficult task” because “errors can be avoided if a district or magistrate judge has a standard script for accepting guilty pleas. . . .  Yet failures to meet those requirements are a recurring issue.”  The Court further cautioned that “even strict adherence to Rule 11 …

Posted by
Categories: child pornography, ineffective assistance of counsel, Rule 11

Posted By
Categories: child pornography, ineffective assistance of counsel, Rule 11

Continue Reading
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 …

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

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

Continue Reading
Monday, April 18th, 2016

Johnson is Retroactive

onwards

In last year’s Johnson v. United States, the Supreme Court held the residual clause of the Armed Career Criminal Act (ACCA) void for vagueness.

In today’s Welch v. United States, the Supreme Court held Johnson applies retroactively.  Only Justice Thomas dissented.

This means defendants serving final sentences — meaning ones previously affirmed on appeal — are now eligible for relief if they were sentenced under ACCA’s residual clause.  This is true even if they’re arguably subject to ACCA’s force/elements clause: though the government’s position was that Mr. Welch merits no relief because his prior conviction for Florida robbery falls under that clause, the Court said that’s debatable and remanded the case for further proceedings.

The question lurking in the shadows here, which Welch didn’t address, is whether Johnson also has the effect of retroactively invalidating the residual clauses of the Career Offender Guideline, 18 U.S.C. § 16, 18 …

Posted by
Categories: ACCA, retroactivity

Posted By
Categories: ACCA, retroactivity

Continue Reading