Court Affirms Convictions for Racketeering, Robbery, and Other Crimes

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

Bruno Krasniqi ("Bruno") and Saimir Krasniqi ("Saimir") were convicted of a substantive RICO count, RICO conspiracy, conspiracy to distribute marijuana, conspiracy to commit Hobbs Act robbery, and other offenses. On appeal, they argued that the evidence was insufficient  to show (1) that the charged criminal enterprise existed; (2) that the charged  murder of Erenick Grezda was committed "in aid of racketeering;" (3) that Saimir participated in the kidnapping of Arben Dinkollari; and, (4) that the defendants participated in an extortion conspiracy. The defendants also argued (5) that the district court improperly limited the cross-examination of an FBI agent; and, (6) that Bruno was denied his right to counsel of his choice. This summary order rejects all of the defendants' arguments and affirms their convictions.

First, the Court held that the evidence was sufficient to establish that the Krasniqi enterprise existed and had multiple members whose shared purpose was to sell drugs and commit various acts of violence. "Indeed, members of the organization testified that they perceived themselves to be part of a 'crew' that was led by Saimir and Bruno." This evidence alone was sufficient to prove the existence of a RICO enterprise.

Second, the evidence was sufficient to prove that the Krasniqis murdered Grezda to maintain or increase their position in the Krasniqi enterprise. The evidence showed that Grezda was a member of the enterprise and that the Krasniqis believed that Grezda had betrayed them. The jury could infer that the defendants killed Grezda to maintain their positions as leaders of the enterprise and to punish Grezda for disloyalty.

Third, the evidence was sufficient to show that Saimir participated in the kidnapping of Arben Dinkollari. There was proof that Saimir was present for the kidnapping and actively participated by spreading plastic on the living room carpet and giving another participant a pillow to use as a gunshot silencer. 

The Court also held that the district court did not abuse its discretion by limiting the defendants from cross-examining an FBI agent to elicit his opinions about the leadership of the Krasniqi enterprise. Those lay opinions, the Court ruled, were not a proper subject for cross-examination. 

Finally, the Circuit held that Bruno was not denied his right to his counsel of choice because he knowingly and intelligently waived that right at a hearing before the district judge.

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 rejected both claims. First, the Court disagreed with the defendant's argument that kickbacks do not include payments made to entities other than the employee who steers his employer's business to a third party in exchange for those payments. The Court declared: "Although the kickback amount frequently is paid directly to the employee who steered the contract, the scheme is no less a kickback scheme when the employee directs the third party to share its profits with an entity designated by the employee in which the employee has an interest." Accordingly, the government need not prove that the defendant employee himself or herself received the payoff. In Demizio's case, it was sufficient for the government to prove that the defendant directed Morgan Stanley business to companies that agreed to pay commissions to his father or brother, "in whom DeMizio plainly  had an interest."  

The Court also rejected the defendant's argument that a private-sector scheme involves kickbacks only if the payoff recipient does not perform any work in return for being paid. "Although often the recipient does not in fact do any work, the scheme qualifies as a kickback scheme where the recipient receives inordinate amounts of money for doing minimal work." 

The Court then addressed the defendant's challenge to the jury instructions. The Court agreed that the trial court erred by not instructing the jury that, to find the defendant guilty of conspiracy to commit honest-services wire fraud, it must find that his scheme involved either bribery or kickbacks. But the Court held that the error was harmless because the case was tried entirely on the theory that the scheme involved kickbacks, the court did not instruct the jury as to any other theory, and the evidence was ample to support findings of kickbacks. 

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 to remedy, the Court rejected the defendant's request for de novo resentencing. Instead, the Court decided to remand with instructions for the district court to vacate the conviction of one of the two counts and to enter an amended judgment. Presumably, this means that the defendant will still have to serve 78 months in prison. But his appellate victory does carry at least one real-world consequence: instead of having to pay $200 in special assessments ($100 on each count), he will pay just $100.

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.

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, including two that ended in murder. Under these circumstances, the 30-year prison term was reasonable.  

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 his attempted murder victim. The Circuit upheld the enhancement, holding that the facts of the attempted murder "convincingly demonstrate life-threatening injury." In particular, Jordan pushed his victim into the doorway of a house and "stabbed her in the abdomen." The resulting injury was sufficiently severe to have placed the victim's life in jeopardy, thus warranting the enhancement imposed by the Parole Commission.

The Circuit also held that Jordan's 12-year prison sentence was substantively reasonable. The Court described the crimes of conviction as "brutal," and noted the significant risk of recidivism.

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 light of the undisputed evidence that Paquin violated his supervised release in multiple ways and on multiple occasions." The Circuit noted, moreover, that the Probation Office had recommended a 60-month period of post-release supervision. 

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 designated LTTE a "foreign terrorist organization" in 1997. Defendant purchased at least $20 million worth of military grade weapons and materials used to make suicide bombs at the direction of the LTTE leadership. Additionally, defendant played a role in a scheme to bribe State Department officials to remove the LTTE from the foreign terrorist organization list.  

Defendant's Guidelines, after application of the so-called "terrorism enhancement," see U.S.S.G. § 3A1.4(a), placed him at offense level 37 and Criminal History Category VI. Thus, the Guidelines range was 360 months-to-life; the combined statutory maximum was 240 months (180 months for the material support conspiracy and 60 months for the bribery conspiracy). The district court recognized the difficulties inherent in deriving a "reasonable sentence," including the prosecution of "people who certainly pose no direct threat to the United States;" and that the defendant had been incarcerated for a lengthy period of time (five years) during which he had been separated from his family. The court also noted the inherent violence of the civil war at issue. The district court sentenced defendant to 108 months and 60 months to run concurrently. 

Acknowledging the deferential standard of appellate review for substantive reasonableness, the Circuit rejected the government's claim that the "more than 50% reduction from the applicable guidelines" was substantively unreasonable. The Court upheld the sentence, concluding that a prison term of 108 months was within the range of "permissible decisions."

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 review only, that the evidence was sufficient to prove Hoke's intent to victimize the bank. The Court distinguished United States v. Nkansah, 699 F.3d 743 (2d Cir. 2012), on the ground that in that case there was no evidence of the Treasury dishonoring the checks or seeking reimbursement from any of the banks, whereas in Hoke's case the Treasury Department did seek reimbursement. Though Nkansah concededly provided some support for Hoke's argument, any error was not sufficiently "plain" to warrant reversal.

The Court also rejected Hoke's challenge to an aiding and abetting jury charge. First, any error was harmless because a rational jury would have found the defendant guilty as a principal. Second, the jury instruction did not constructively amend the indictment.

Finally, the district court did not abuse its discretion by permitting a read-back of certain trial testimony to the jury.

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 possession and robberies, including a robbery in which guns were aimed at two victims, one an infant.  Accordingly, the sentence was not "shockingly high," unsupportable as a matter of law, or beyond the bounds of discretion.  

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 of sophisticated means are often linked, they 'aim at different harms.'" Thus, no impermissible double counting took place.

Third, the government was not judicially estopped from encouraging the district court to apply the sophisticated means enhancement. Assuming estoppel applies to the government in criminal cases, no estoppel was warranted because the government did not seek the enhancement, but only responded to an inquiry about the enhancement by providing relevant factual history. 

Finally, given all the factors, the 30-month sentence was not substantively unreasonable.    

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 exited their vehicles with guns drawn, but at their sides. The police ordered Clark, the driver of the Jeep, to exit the car, and when he did, they saw the butt of a handgun underneath the driver's seat. The police also later found cocaine.

The Court held that the evidence was lawfully obtained. The Court ruled that the officers' actions prior to discovering the gun constituted a "stop," not an arrest, and that the stop was supported by reasonable suspicion. The Court distinguished this case from Florida v. J.L., 529 U.S. 266 (2000), the leading "anonymous tip" case, on three grounds: 1) the tip here gave the names of some of the suspects, and law enforcement recognized them as having been involved in past offenses; 2) the tip was not "truly anonymous" because the caller gave her first name and location; and, 3) the call reported an "ongoing emergency" rather than "general criminality." 

Since the stop was lawful, and the firearm was seen in plain view, the district court did not err in refusing to suppress the gun or the other evidence obtained upon Clark's arrest.

Evidence Insufficient To Prove Possession of Cocaine

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

This published decision holds that the trial evidence was insufficient to support the defendant's conviction for possession of cocaine. Judge Droney dissents.

In response to a 911 call reporting that some men had just left a bar in Lockport, New York, in a white Jeep Cherokee after trying to "jump somebody," the police found Clark and three others sitting in the Cherokee. They discovered a firearm in the vehicle and arrested Clark. The police placed Clark, alone, in the rear compartment of a police cruiser; he was handcuffed securely behind his back. Though Clark was patted down, no drugs or drug paraphernalia were found. But after Clark was brought to the police station, the police found crack cocaine in the police car between the back of the back-seat cushion and the bottom of the back-seat back rest. The government claimed at trial that the cocaine was Clark's. 

To support this theory, a police officer testified that he had checked the rear-seat space before starting his evening shift, but had found nothing there, and that Clark was the first person to occupy the back seat of the car that evening. On the other hand, the police did not find any white powdery substance on Clark's hands, pants, or jacket; nor did they see any white powdery substance on the back seat until it was lifted up. No glassine envelope or other container was found in the police car or on Clark's person.

Under these circumstances, the majority held, the evidence was insufficient to permit a juror to conclude beyond a reasonable doubt that the cocaine belonged to Clark. The Court emphasized eight undisputed facts: (1) Clark was patted down for weapons before being place in the police car; (2) no object large enough to contain a substantial quantity of crack cocaine was noticed; (3) Clark was placed in the back of the police car with his hands cuffed securely behind his back; (4) the ride to the police station took about one minute; (5) shortly after Clark got out of the car, with his hands still handcuffed behind his back, a police officer lifted the back seat sufficiently to disclose the space between the back edge of the back-seat cushion and the lower edge of the back-seat back rest; (6) in that space the police found a quantity of crack cocaine measuring more than five inches in length and about one inch wide; (7) no traces of crack cocaine were observed on Clark's clothing or on his hands; and, (8) no glassine envelope or similar container was found in the police car; nor was Clark observed to have discarded such a container.

The majority held that, while it may have been theoretically possible for Clark to have removed the cocaine from his person and ditched it underneath the seat of the car, without leaving any trace amount on his person, despite being handcuffed, the evidence that he did so was so speculative that no jury could reasonably have found guilt beyond a reasonable doubt. The majority said that "it is difficult to imagine a case where the possibility that an innocent person has been convicted of an offense is greater than the one now before us."     

Judge Droney's dissent concluded that a rational jury could have found beyond a reasonable doubt that Clark deposited the cocaine underneath the seat of the patrol car, that the police simply missed the cocaine during their initial pat-down, and that Clark used his "substantial time alone in the patrol car to place the cocaine underneath the back seat."

Commentary: This case is a good example of the Court taking seriously its obligation to assess the sufficiency of the evidence, rather than simply rubber-stamping a jury's verdict. Judge Newman's majority opinion emphasizes that appellate deference to jury verdicts "does not mean ... that we must never deem evidence insufficient. Nor does it mean that if there is any evidence arguably in support of a verdict, we must affirm."   

Seven-Year Resentencing Delay Did Not Violate Due Process

United States v. Kurti, No. 12-3503-cr (2d Cir. Jan. 16, 2014) (Winter, Straub, and Hall) (summary order), available here

This summary was provided by noted criminal defense attorney Francisco Celedonio, who also serves on the Board of Directors of Federal Defenders of New York, Inc.:

This summary order affirms a sentence imposed upon resentencing, after a seven-year delay from the original remand from the Circuit. Kurti argued that the delay violated due process, and also challenged the substantive reasonableness of his sentence. The Circuit held that the delay alone (some of which was occasioned by Kurti) was insufficient to warrant relief, and that Kurti had to demonstrate "some substantial and demonstrable prejudice" from the delay. Because Kurti faced a substantial sentence (the Guidelines range was 360 months-to-life), he could not succeed on either the due process claim or the claim of substantive unreasonableness.

District Court Was Not Required to Grant "Fast-Track" Departure Motion

United States v. Shand, No. 13-227-cr (2d Cir. Jan. 13, 2014) (Pooler, Parker, and Wesley), available here

This summary has been provided by noted criminal defense attorney Francisco Celedonio, who also serves on the Board of Directors of Federal Defenders of New York, Inc.:

In this illegal reentry case under 8 U.S.C. § 1326(a) and (b)(2), the Circuit affirmed a 77-month sentence imposed following the district court's (Judge Irizarry's) denial of a "fast-track" downward departure motion pursuant to U.S.S.G.§ 5K3.1.

Shand was arrested in 2011 after he produced false identification at a traffic stop. ICE determined that he had been previously deported and had reentered without authorization. Shand was thus indicted for being "found in the United States," in violation of 8 U.S.C. § 1326(a). Shand signed a plea agreement under the EDNY's "fast-track" program, which yielded an estimate offense level 16 in CHC III, including a  four-level reduction under U.S.S.G. § 5K3.1. At the time the agreement was reached, the government believed that Shand had entered the U.S. in 2011. But during the presentence investigation, Probation discovered that Shand had reentered in 2004, not 2011, and that he had a substantially greater criminal history than anticipated: the PSR concluded that Shand was in CHC VI, with a guidelines range of 77-96 months. Regardless, the government moved for the fast-track reduction, but the motion was denied by Judge Irizarry. She sentenced Shand to 77 months of imprisonment. 

On appeal, Shand argued that the district court was required to grant the government's departure motion. But the Circuit affirmed the sentence, holding that, under U.S.S.G. § 5K3.1, a district court is permitted, but not required, to grant a "fast-track" departure on the government's motion. 

Circuit Reverses Alien's Section 1326(a) Conviction: Defendant Was Not "Found In" the United States

United States v. Vasquez Macias, No. 12-3908-cr (2d Cir. Jan. 14, 2014) (Pooler, Raggi, and Wesley), available here

The defendant, a citizen of Honduras, was convicted after a jury trial of being "found in the United States" illegally after he was deported from the United States, in violation of 8 U.S.C.§ 1326(a). The Circuit reversed the conviction, holding that the defendant was not in the United States when he was "found," and that, when he was later discovered in the United States, he was not here voluntarily. Accordingly, the Court held, the conviction "was plainly erroneous and it would constitute manifest injustice to allow it to stand."

The facts were undisputed. Vasquez Macias ("Vasquez"), an alien, was deported from the United States in 2000, following his conviction for a drug crime. He returned to the United States in 2001 and lived here illegally for about a decade. He then went to Canada by walking across the Rainbow Bridge. Canadian officials refused him entry, forcibly returned him in handcuffs to the United States, and handed him over to United States officials, who kept him in custody. He was then indicted and convicted for being "found in the United States" illegally. 

The Circuit held, in this published decision, that the conviction could not stand. The majority opinion (written by Judge Wesley) concluded that, though Vasquez had been present in the United States illegally for nearly a decade, he was charged only with the crime of "being found" here. But the government did not prove that crime: when Vasquez was "found," he was in Canada, not the United States. At that point, he did not have a physical or legal presence in this country. Though he was then brought back to the United States and arrested, he had been returned to this country involuntarily, with neither a desire to enter, nor a will to be present. Under these circumstances, he was not "found in[] the United States," as required to support his conviction under 8 U.S.C.§ 1326.

Judge Raggi concurred in a separate opinion. She agreed that the defendant's conviction had to be reversed, but reached that conclusion on somewhat different grounds. Judge Raggi construed Section 1326 to require proof of a defendant's general intent to be in the United States. In the case of a defendant charged with "being found" in the United States illegally, that means proof either that (1) the defendant was voluntarily in the United States when authorities found him physically present in this country, or (2) his presence in the United States at the time he was so found was a result of his last voluntarily return to the United States. Since neither circumstance pertained in Vasquez's case, his conviction had to be reversed.      

Pro Se Appeal Fails on All Eight Grounds

United States v. Razzoli, No. 13-126(L) (2d Cir. Dec. 23, 2013) (Raggi, Chin, and Droney) (summary order), available here

Convicted of willfully and forcibly interfering with the performance of duties of Deputy United States Marshals, the defendant appealed pro se. The Court rejected all eight of his arguments:

First, the district court properly denied the defendant's motion to recall prosecution witnesses for further cross-examination because he had a full opportunity to cross-examine during the government's case and offered no explanation for failing to question the witnesses more fully at that time. 

Second, the district court properly rejected the defendant's motion for a new trial based on the alleged destruction of evidence. The defendant did not identify what evidence was destroyed or why he was entitled to a new trial.

Third, trial counsel was not ineffective for not filing an interlocutory appeal from the district court's denial of his Rule 33 motion, because such decisions are not immediately appealable.

Fourth, the district court properly denied the defendant's motion to subpoena a clergyman because the defendant never showed the relevance of the clergyman's testimony.

Fifth, the district court properly rejected the defendant's claim that the government had improperly recorded his telephone conversations with his attorney. There was no evidence to support the defendant's claim.

Sixth, the district court properly declined to conduct an evidentiary hearing at sentencing. The issues the defendant apparently sought to explore at a hearing -- including the allegation that his conviction was the product of  false testimony and a "cover up" -- had no bearing on sentencing. 

Seventh, the district court properly rejected or disregarded the defendant's objections to the PSR because they were not material to sentencing.

Finally, the district court properly denied the defendant's request to subpoena witnesses and certain videotapes for consideration at sentencing. The defendant never explained the import of those witnesses and tapes or how they would have affected sentencing.  

Circuit Affirms Top-of-the-Range Sentence for Violation of Supervised Release

United States v. Morris, No. 12-4796-cr (2d Cir. Dec. 23, 2013) (Pooler, Parker, and Chin) (summary order), available here

The defendant violated supervised release by leaving the judicial district without permission. He was sentenced to 14 months of imprisonment, the top of the advisory range, and a new 22-month term of supervised release.

The Circuit held that this sentence was procedurally and substantively reasonable. First, the sentencing court did not improperly consider that the defendant left the district by using false identification, even though the defendant never specifically pled guilty to that conduct. The defendant's use of an alias to leave the district, the Circuit held, was "relevant to the traveling violation," and supported the district court's conclusion that he had a "continued disrespect ... [for] the law." 

The 14-month sentence was also substantively reasonable. The district court found that this sentence was necessary to achieve "specific deterrence," and that the defendant was a "menace to others." Accordingly, the sentence was not an abuse of discretion.  

District Court Did Not Commit Plain Error By Excluding Evidence of Lenders' Negligence

United States v. Isola, No. 12-3484-cr (2d Cir. Dec. 23, 2013) (Pooler, Parker, and Chin) (summary order), available here

Convicted of wire fraud, the defendant claimed that the district court committed by plain error by not allowing him to present evidence concerning the negligence of the financial institutions he defrauded. He argued that the evidence was relevant to the materiality element of wire fraud. The Circuit disagreed, holding that "evidence of a particular lender's unreasonableness is irrelevant to the materiality of Isola's false statements because materiality is an objective question."

The Circuit also rejected the defendant's arguments that his 37-month prison sentence was procedurally and substantively unreasonable. First, the Court disagreed with the defendant's claim that the sentencing court  improperly conflated the standard for a below-Guideline "variance" with the stricter standard for a downward "departure." Second, the Court held that the sentence -- the bottom of the Guidelines range -- was not excessive.    

Evidence of Drug Trafficking in Arizona Was Admissible Against Defendant Charged With Conspiring to Distribute Drugs in Vermont "and Elsewhere."

United States v. DeLaRosa, No. 12-4188-cr (2d Cir. Dec. 20, 2013) (Cabranes, Wesley, and Livingston) (summary order), available here

DeLaRosa was convicted of conspiring with John Brooker and others to distribute drugs in Vermont "and elsewhere" from 2006 to "on or about June 16, 2009." On appeal, he argued principally that the district court erred by admitting evidence of drug trafficking in Arizona that took place after Brooker's arrest on June 16, 2009.

The Circuit held that the evidence was properly admitted. The evidence was not offered to prove  prior bad acts under Fed. R. Evid. 404(b), but rather as direct evidence of the single drug-trafficking conspiracy orchestrated by DeLaRosa. Trial testimony showed that the conspiracy's goal was to acquire narcotics from distributors in New York, Florida, and Arizona and to deliver the drugs to customers in Vermont, New York, and Massachusetts. The conspiracy did not end just because operations began to shift away from Vermont following Brooker's arrest. Accordingly, evidence of drug trafficking in Arizona after Brooker's arrest was admissible.

Nor did the admission of the Arizona evidence improperly change the terms of the indictment. Since the indictment charged a conspiracy occurring in Vermont "and elsewhere," from 2006 to "on or about June 16, 2009," it encompassed evidence of drug trafficking in states other than Vermont after Brooker's arrest.