Defendant Gave Implied Consent to Seizure By Disclosing Location of Gun

United States v. Simmons, No. 12-1637-cr (2d Cir. Nov. 26, 2013) (Pooler, Lohier, and Carney) (summary order), available here

The panel held that the seizure of a firearm from the defendant's room did not violate the Fourth Amendment because he gave "implied consent" to the seizure.

The district court found that, by telling police officers the precise location of the gun, the defendant  implicitly consented to them seizing it. The court also found that such consent was given voluntarily.

The Circuit, finding no clear error in these findings, affirmed the denial of the defendant's motion to suppress.  

Fair Sentencing Act Does Not Apply to Defendants Sentenced Prior to August 3, 2010

United States v. Rowley, No. 12-3975 (2d Cir. Nov. 26, 2013) (Kearse, Jacobs, Parker) (summary order), available here

This summary order reaffirms that the Fair Sentencing Act does not apply to defendants who were convicted and sentenced before August 3, 2010. See United States v. Diaz, 627 F.3d 930, 931 (2d Cir. 2010).

The one noteworthy aspect of the summary order is that the Court, apparently for the first time, explicitly rejected the Sixth Circuit's contrary decision in United States v. Blewett, 719 F.3d 482 (6th Cir. 2013). The panel noted that Blewett "arguably contradicted" binding Sixth Circuit precedent and has since been vacated pending rehearing en banc. The panel further stated that Blewett appeared to be "wrongly decided" and that every circuit to consider Blewett "has declined to follow its lead." 

District Court Committed No Plain Error in Setting Plea Deadline for "Acceptance Points" or Imposing Restitution Beyond Amount in Plea Agreement

United States v. Doyle, No. 11-5265-cr (2d Cir. Nov. 26, 2013) (Kearse, Jacobs, and Straub) (summary order), available here

Doyle pled guilty to wire fraud and was sentenced to 72 months of imprisonment and $880,000 in restitution. On appeal, he argued that the district judge violated Fed. R. Crim. P. 11(c)(1) by participating in plea discussions. He noted that the court warned him that there would be a deadline for "acceptance of responsibility points" and that, if he intended to plead guilty, he should do so "before June 21" so that the could receive the extra third point for acceptance of responsibility.

The panel found no reversible plain error because the defendant could not show that, but for the alleged remarks, he would not have pled guilty. The Court noted that the defendant pled guilty nearly three weeks after the announced June 21 "deadline" and had not shown a reasonable probability that he would have gone to trial but for the challenged comments.

The panel also found no reversible error in the government seeking, and the district court ordering, $880,000 in restitution even though the plea agreement indicated only $105,000 in restitution. The Court noted that the plea agreement stated a forfeiture amount of $880,000, and that, in raising the restitution figure to match the forfeiture amount, the district court made clear that the defendant's combined financial obligation under the forfeiture and restitution orders was capped at $880,000, a forfeiture amount the defendant did not challenge. Accordingly, the district court merely chose to channel the $880,000 the defendant owed to the government to the victim. "Changing to whom he owed it did not affect Doyle's substantial rights or the fairness of the proceeding."

Search and Seizure of Laptop Computer Did Not Violate Fourth Amendment

United States v. Howe, No. 12-4394-cr (2d Cir. Nov. 25, 2013) (Pooler, Raggi, and Wesley) (summary order), available here

Convicted of receiving and possessing child pornography, Howe was sentenced to 180 months of imprisonment. On appeal, he argued that the district court should have suppressed the evidence against him because (1) the police lacked probable cause to seize his laptop computer without a warrant; (2) the delay between seizure of his laptop and the issuance of a federal warrant to search the computer was  unreasonable; and (3) no probable cause existed to support issuance of the federal warrant to search the laptop.

The panel rejected all three arguments. First, probable cause existed to seize the laptop because a police officer had "viewed the Sample Pictures folder" on the computer, which contained a "lascivious" image.

Second, though the government's delay in seeking the federal search warrant was "quite lengthy," it was not constitutionally unreasonable because the delay resulted from error rather than lack of diligence, the defendant had a "diminished" possessory interest in the computer, and the government had a "strong interest" in retaining the laptop.

Finally, the Court rejected the defendant's claim that the federal search warrant was not based on probable cause. The affidavit in support of the warrant noted, among other things, that witnesses reported seeing titles of files on the defendant's computer indicating that the files contained sexually explicit images of children. Accordingly, officials had probable cause to believe that the defendant's laptop contained child pornography.

Defendant Who Pled Guilty Under Rule 11(c)(1)(C) Plea Agreement Was Not Eligible for Resentencing Under Crack Amendments

United States v. King, No. 12-2262-cr (2d Cir. Nov. 25, 2013) (Pooler, Raggi, and Wesley) (summary order), available here

This summary order affirms the district court's ruling that the defendant was not eligible for a reduced sentence under 18 U.S.C. 3582(c) and U.S.S.G. 1B1.10.

The defendant pled guilty in 1999, pursuant to a Rule 11(c)(1)(C) plea agreement, to two racketeering offenses: conspiracy to shoot a rival gang member and conspiracy to distribute cocaine and cocaine base. He was sentenced to 20 years of imprisonment, below the life term called for by the applicable Guidelines.

The panel held that the defendant was not eligible for a reduced sentence because his sentence was not "based on" a range that has subsequently been lowered by the Sentencing Commission. 18 U.S.C. 3582(c)(2). Rather, the sentence was based on the plea agreement, which did not expressly use a Guidelines sentencing range to establish the term of imprisonment, and on the government's request for a downward departure from a life sentence for the murder conspiracy.

Evidence Was Sufficient to Establish that Defendant Committed Wire Fraud

UNITED STATES V. TOMICIC, NO. 12-2653-cr (2D CIR. NOV. 22, 2013) (CALABRESE, POOLER, AND KORMAN) (SUMMARY ORDER), AVAILABLE HERE

The Court affirmed the defendant's conviction for wire fraud and denied his claim that the government presented insufficient evidence at trial.  That evidence demonstrated that the defendant submitted what he knew to be falsified, backdated competing bids to a developer.  The defendant also knew that a dispute between the developer and insurance carrier existed.  As a result, the jury could find that the defendant knew his falsified bids would be given to the insurer.  The Court also affirmed a $90,000 restitution order and denied the defendant's claim that an insufficient basis existed to justify the loss calculation.  Based upon the evidence, the Court could determine the loss by taking the difference between the actual cost of the work done and the amount claimed in the falsified bid.

A Defendant's Assets Can Be Used to Satisfy Criminal Fines and Forfeitures Over a Wife's Claim of Right Under New York Law

UNITED STATES V. BUTLER, NO. 12-5120-cr (2D CIR. NOV. 22, 2013) (POOLER, RAGGI, AND WESLEY) (SUMMARY ORDER), AVAILABLE HERE

The Court held that assets in the defendant’s name could be used to satisfy a $5 million fine and $250,000 forfeiture ordered in a securities and wire fraud conviction case and denied claims by the defendant’s wife that she had a legal right to the assets under several theories she presented as a Third-Party Appellant.  First, New York state’s “economic partnership” law did not apply to the assets because no dissolution of the marriage was pending. New York law does not require equitable distribution of assets pursuant to an "economic partnership" theory prior to a judgment dissolving the marriage. Second, the wife failed to demonstrate that the funds were held for her in a constructive trust because the evidence and her "economic partnership" claim contradicted any expectation that the funds would be returned to her.  Finally, the source of the funds and whether they were proceeds of non-criminal activity was unimportant because the wife failed to demonstrate a legal right to the accounts.

15-Year Sentence in Drugs and Gun Case Was Procedurally and Substantively Reasonable

UNITED STATES V. HIGHSMITH, NO. 13-201-cr (2D CIR. NOV. 22, 2013) (SACK, HALL, AND LIVINGSTON) (SUMMARY ORDER), AVAILABLE HERE

The Court denied this defendant’s appeal of his 15-year sentence for distribution of 50 grams or more of cocaine and a 924(c).  The defendant argued that the district court did not adequately consider certain 3553(a) factors and that it wrongly doubled his sentence on the drug count from a 5-year mandatory minimum to 10-years.  On plain error review, the Court disagreed with both claims and found the sentence procedurally and substantively reasonable.  First, the district court explained at the sentencing hearing that it considered the PSR, the parties’ sentencing letters and identified various characteristics of the defendant.  The district court also expressly stated that it was imposing a sentence sufficient, but not greater than necessary to comply with 3553(a).  The 15-year sentence was substantively reasonable because it fell within the permissible range of sentences.  The guidelines recommended a 420-month term and the two substantive counts of conviction each carried a 5-year minimum.

Evidence Was Sufficient to Establish that Defendant Crossed State Lines with Intent to Commit a Sex Crime

United States v. Escobar-Gonzalez, No. 12-4657-cr (2d Cir. Nov. 21, 2013) (Pooler, Raggi, and Wesley) (summary order), available here

This summary order holds that the evidence was sufficient to support the defendant's conviction of  transporting a minor interstate to engage in illegal sexual activity. The panel also held that the district court did not improperly rely at sentencing on a prior, uncharged rape allegation. [Disclosure: the Federal Defenders of New York represents Mr. Escobar-Gonalez.]

The facts were these: The defendant drove a group of illegal aliens from Dallas to the New York tri-state area. Toward the end of the trip, he allegedly sexually assaulted one of the aliens at a rest stop in New Jersey. 

The defendant argued on appeal that the evidence was insufficient to establish that he formed the intent to commit the sexual assault before he crossed state lines, as the charged sexual crimes required. But the panel held that, given the defendant's apparent "special interest" in the victim throughout the journey, the jury reasonably could have found that the defendant's sexual motive was "more than incidental"  to the trip and that he crossed state lines with the specific intent to commit a sex crime.

The panel also held that sentencing court did not improperly rely on a prior, uncharged rape allegation. First, there was no evidence that the court had considered the uncharged rape at sentencing. Second, the panel ruled, even if the court had considered the uncharged rape, it did not affect the defendant's sentence.

Court Upholds Rule 404(b) Decision and Sufficiency of Evidence

United States v. Cartagena, No. 12-4910-cr (2d Cir. Nov. 21, 2013) (Newman, Hall, and Lynch) (summary order), available here

Cartagena was convicted by a jury of attempting and of conspiring to distribute at least five kilograms of cocaine. At trial, the court admitted testimony that Cartagena had been involved earlier an an uncharged 2009 drug conspiracy.

The panel held that this evidence was properly admitted to provide "relevant background information" that explained the defendant's relationship to Seyfried, a co-conspirator, and the defendant's knowledge of Seyfried's role in a national drug conspiracy. The evidence was also properly admitted under Fed. R. Evid. 404(b) because it provided relevant proof of the defendant's specific knowledge of Seyfried's drug activities and proof of the relationship between the two men. The evidence was not unduly prejudicial because it did not involve conduct more serious than the charged crime.

The panel also held that the evidence as a whole was sufficient to establish the defendant's knowledge of the intended objective of the conspiracy. The evidence included Seyfried's testimony and law enforcement testimony that the defendant was found in a vehicle with drugs, had admitted being involved in the 2009 conspiracy, and had made exculpatory false statements that tended to corroborate his knowing involvement with Seyfried.

 

Restitution Order Was Not Plainly Erroneous

United States v. Schwamborn, No. 12-5125-cr (2d Cir. Nov. 21, 2013) (Pooler, Raggi, and Wesley) (summary order), available here

Convicted of securities fraud, the defendant was sentenced principally to 121 months of imprisonment and about $182,000 in restitution. On appeal, he challenged the restitution order on three grounds: (1) one of the victim's affidavits was unreliable and overstated the loss amount; (2) the defendant had not caused the victims' losses; and (3) the need to provide restitution was outweighed by the burden placed on the sentencing process.

The court of appeals, applying plain error analysis, rejected all three arguments. First, the victim's affidavit was sworn, notarized, and sufficiently reliable to support its probable accuracy. Second, the evidence supported the district court's conclusion that the defendant was the proximate cause of the victims' losses. Third, the factual circumstances of the case were not so complex as to unduly prolong the sentencing process and outweigh the need to provide restitution to victims. Accordingly, the panel affirmed the restitution order.

 

Sentence of Imprisonment Plus Supervised Release Following Revocation Was Reasonable

United States v. Beckett, No. 12-4233-cr (2d Cir. Nov. 20, 2013) (Pooler, Raggi, and Wesley) (summary order), available here

After the defendant violated his supervised release, the district court imposed a sentence of 10 months of imprisonment, to be followed by a new, 19-month term of supervised release. On appeal, the defendant argued that the new term of supervised release was unreasonable because it contradicted the Probation Office's recommendation against any further supervised release.

The Circuit held that the new term of supervised release was reasonable. The panel noted that the Probation Office's recommendation against supervised release was not binding on the district court, and that the court gave valid reasons for rejecting the recommendation. The court cited the defendant's need for drug and alcohol treatment and the need to protect the public from any further crimes, valid statutory factors. Accordingly, the Circuit affirmed.  

Circuit Affirms 300-Month Sentence for Armed Career Criminal

United States v. Roy, 12-3242-cr (2d Cir. Nov. 19, 2013) (Lynch, Chin, and Carney) (summary order), available here

Convicted of distributing marijuana and of possessing a firearm as a previously convicted felon, in violation of 18 U.S.C. 922(g)(1), the defendant was sentenced under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. 924(e), to 300 months of imprisonment. In this summary order, the court of appeals upheld the sentence as procedurally and substantively reasonable.

Under ACCA, a person who violates 18 U.S.C. 922(g) and has "three previous convictions ... for  a violent felony ... committed on occasions different from one another ... shall be ... imprisoned not less than fifteen years." Roy had three prior state convictions in Connecticut for burglary and two for arson. If these convictions were for "generic" burglary or "generic" arson, they qualified as "violent felon[ies]" under ACCA.

The Circuit held that the two arson convictions qualified as "violent felon[ies]" under ACCA because the Connecticut arson statutes under which the defendant was convicted were "generic arson statutes." The Circuit also held that the district court did not commit "plain error" by relying on certain state records to establish that the arsons had been committed on different occasions.

Finally, the Circuit held that at least one of Roy's three burglary convictions was for "generic burglary," and thus qualified as a "violent felony" under ACCA. The jury instructions from Roy's trial for a 1991 burglary revealed that the jury necessarily found that he robbed a "building" or "structure." Accordingly, under the "modified categorical approach" to prior convictions, Roy's conviction was for generic burglary, a violent felony. The Circuit left open whether every conviction under Connecticut's third-degree burglary statute is categorically a violent felony.

 

District Court Did Not Adequately Explain Refusal to Reduce Sentence

United States v. Christie, No. 13-245-cr (2d Cir. Nov. 15, 2013) (Lynch, Chin, and Droney), available here

Defendant moved for a sentence reduction under 18 U.S.C. 3582(c)(2), based on the 2011 Amendments to the Sentencing Guidelines lowering the penalties for crack cocaine offenses. Both the Probation Office and the government agreed that the defendant was eligible for a reduction. But the government argued that the court should decline to reduce the sentence because of the defendant's firearms offenses and criminal history.

The district court entered an order that stated only that the defendant's motion was "denied." The court did not explain the reasons for its decision. 

The Circuit held that the court's failure to explain its decision made meaningful appellate review impossible. The Circuit noted that the defendant's sentence was above the now-applicable Guidelines range and that nothing in the record revealed why an above-Guidelines sentence was warranted. Because "at least some minimal statements of reasons for a court's action on a [section] 3582(c)(2) motion is required," the Circuit remanded for further proceedings.      

Defendant's Death Leads to Restitution Abatement

United States v. Kuruzovich, No. 12-1789-cr (2d Cir. Nov. 14, 2013) (Hall, Droney, and Restani) (summary order), available here

The defendant was sentenced to one year of imprisonment and about $59,000 in restitution. [Disclosure: the Federal Defenders of New York represented the defendant for a time in the district court.]

While his appeal was pending, but after completing his term of imprisonment, the defendant died. His estate had no assets, the victim no longer sought to benefit from restitution, and counsel for both sides consented to vacating the restitution order. Under these particular circumstances, the Circuit abated the restitution order. 

District Court Properly Exercised Discretion to Halt Deliberations and Investigate Juror Misconduct

United States v. Purnell, No. 12-4167-cr (2d Cir. Nov. 14, 2013) (Walker, Cabranes, and Lohier) (summary order), available here

This summary order holds that the district court properly exercised its discretion to halt jury deliberations and investigate potential juror misconduct.

During deliberations, the jury sent two notes stating that it was deadlocked. Both times, the district court instructed the jury to continue deliberating. A third note stated that one juror was being "unreasonable" and may have withheld information from the court during voir dire.

Rather than simply deliver another Allen charge, the district court decided to question the juror at issue, who was subsequently removed from the jury. The Circuit held that the court's decision to act in this manner was a proper exercise of its discretion. Indeed, the Circuit noted, it had recently reversed a court for not investigating credible claims of juror misconduct. See United States v. Haynes, 729 F.3d 178, 192 (2d Cir. 2013), available here.

District Court Abused Discretion in Awarding Restitution for Unsubstantiated Losses

United States v. Simmons, No. 12-2187-cr (2d Cir. Nov. 13, 2013) (Katzmann, Leval, and Pooler) (summary order), available here

Convicted of conspiracy to commit bank and wire fraud, the defendant was sentenced to 41 months of imprisonment, $1.3 million in forfeiture, and $1.3 million in restitution to Siren Management Company and Community Preservation Corporation ("CPC"). On appeal, the defendant challenged only the restitution order.

By summary order, the Circuit held that Siren was properly found to be a "victim" for restitution purposes because it was directly harmed by the defendant's criminal conduct in the course of the fraudulent scheme. The Circuit held that CPC was also a victim for restitution purposes, not a co-conspirator, as the defendant claimed.  

The Circuit agreed with the defendant, however, that the district court abused its discretion by including in Siren's loss amount more than $250,000 based solely on an unsworn letter from Siren claiming a lump-sum amount lost in unpaid "common charges and assessments." The government had provided almost no information about the loss amount, no documentation regarding Siren's asserted loss, and no explanation as to why providing more information was impracticable. Accordingly, the Circuit remanded for the district court to reduce the restitution award or, alternatively, to obtain adequate proof of the claimed loss amount. 

  

Defendant Not Eligible for a Sentence Reduction Under Amendment 599

United States v. Heatley (Jackson), No. 12-2812 (2d Cir. Nov. 13, 2013) (Newman, Hall, and Lynch) (summary order), available here

In this summary order, the Circuit agreed with the district court that the defendant was not eligible for a sentence reduction under 18 U.S.C. 3582(c)(2) and Amendment 599 to the Sentencing Guidelines.

Amendment 599 provides that "when a defendant is convicted of both an underlying offense and a[n] [18 U.S.C.] sec. 924(c) offense for using a firearm in connection with the underlying offense, his sentence on the underlying offense cannot be enhanced for the possession or use of a firearm."

The defendant could not benefit from this provision because the district court did not apply any enhancements for using or possessing a firearm in connection with his sentence for the count of conspiracy to commit murder. Moreover, even if the court had applied a firearms enhancement to the conspiracy to commit murder count, the defendant would not be entitled to relief. The conspiracy to commit murder count was not an "underlying offense" of the defendant's two 924(c) firearms counts. Rather, the murder conspiracy charge arose from the murder of one individual, while the 924(c) convictions arose from the murders of two other individuals. Amendment 599 did not apply to that situation.  

It's Not the Second Circuit, But . . .

United States v. LaDeau, No. 12-6611 (6th Cir. Nov. 4, 2013) (Rogers, Griffin, and Donald), available here 

In this noteworthy ruling, the Sixth Circuit upheld a district court's decision to dismiss an indictment in a child pornography downloading case based on prosecutorial vindictiveness.  

The defendant was originally charged with one count of possessing child pornography (18 U.S.C. 2252A(a)(5)(A)), which carried a statutory sentencing range of zero to ten years of imprisonment. After the district court granted the defendant's motion to suppress, the government secured a superseding indictment charging the defendant with a conspiracy offense based on evidence that had been in the government's possession since before the initial indictment. But rather than charging the defendant in the superseding indictment with conspiracy to possess child pornography, the government charged him instead with conspiracy to receive child pornography - a crime that subjected the defendant to a five-to-twenty-year prison term instead of the previously applicable zero-to-ten-year term.

The district court dismissed the superseding indictment, holding that the government's decision to change to a receipt theory warranted a presumption of prosecutorial vindictiveness, which the government had failed to rebut.

On the government's appeal, the Sixth Circuit affirmed, holding that the district court's decision to dismiss was not an abuse of discretion.

Circuit Vacates Forfeiture Order for Plain Error

United States v. Lopez, No. 12-1019-cr (2d Cir. Nov. 12, 2013) (Livingston, Lynch, and Droney) (summary order), available here 

Federal Rule of Criminal Procedure 32.2(b)(2)(C) permits a district judge to enter a general forfeiture order if "before sentencing, the court cannot . . . calculate the total amount of the money judgment." The rule directs district judges entering such an order to "(i) list[] any identified property; (ii) describe[] other property in general terms; and (iii) state[] that the order will be amended under Rule 32.2(e)(1) when . . . the amount of the money judgment has been calculated."

Here, the defendant was sentenced to 12 years in prison for conspiracy to distribute drugs. The district court also ordered that he forfeit "[a]ny proceeds gained as a result of [his] criminal activity." No objection was raised to this forfeiture order in the district court. Nevertheless, the Circuit found plain error in the district court's failure to specify a forfeiture amount or to state its intent to specify a specific amount at a later date.