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 …

United States v. Krasniqi, Nos. 12-2788-cr and 12-2789-cr (2d Cir. Jan. 28, 2014) (Newman, Hall, and Lynch) (summary order), available here

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

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 …

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. …

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, …

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 …

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.

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.:

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 …

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 …