The Second Circuit issued summary affirmances in two criminal cases today.
In United States v. Jasmin, No. 15-2546, the Court affirmed the conviction of the former mayor of Spring Valley, New York, on mail fraud and extortion charges. The Court held that the government’s reliance at trial on a mailing not specified in the indictment was not a constructive amendment or variance of the indictment. The government did rely on a mailing that was listed in the indictment, and Jasmin had notice of the additional mailing more than a year before trial. The Court found there was sufficient evidence to support both convictions. In terms of the mail fraud count, the use of the mail was foreseeable to Jasmin.
With respect to the Hobbs Act claim, the Court found the evidence sufficient to support the conviction. Part of the proof on the interstate commerce element involved Jasmin’s travel to New Jersey to discuss the scheme with a co-conspirator who was cooperating with the FBI. The Court favorably cited US v. Al Kassar, 660 F.3d 108, 120 (2d Cir. 2011), for the proposition that “even if the government initiates an essential element of a crime, jurisdiction is not manufactured if the defendant then takes voluntary actions that implicate the government-initiated element.”
In United States v. Rodriguez, 15-2769, the Court affirmed a conviction and 15-month sentence, following a plea of guilty, to one count of illegal reentry. The District Court previously denied Mr. Rodriguez’s motion to withdraw his plea. The motion was based on the ground that he was misinformed regarding the potential maximum sentence he faced based on the classification of a prior conviction. The Court held that Mr. Rodriguez’s challenge to the district court’s denial of his motion was barred by the appeal-waiver provision in his plea agreement.
The Court further held that, although the plea colloquy did not fully comport with Rule 11, Rodriguez could not show any error affected his substantial rights. Yuanchung Lee of the Federal Defenders of New York represented Mr. Rodriguez on appeal.