Justia U.S. 2nd Circuit Court of Appeals Opinion Summaries

This instant appeal arose from the suppression of certain custodial statements made by defendant shortly after his arrest. In light of the Supreme Court's decision in Berghuis v. Thompkins, the government sought reconsideration and reversal of an order of suppression entered by the district court and previously affirmed by this court. The court reconsidered the district court's order of suppression in this case and vacated that order because the court agreed with the government that Berghuis constituted "an intervening change in controlling law," and because the court further agreed that Berghuis compelled a different outcome on these facts.

Defendant appealed convictions for conspiracy to distribute more than 50 grams of crack cocaine, causing death by use of a firearm during a drug trafficking crime, murder in the course of drug conspiracy, and possession of ammunition by a convicted felon. Defendant contended that he was entitled to acquittal on some counts by reason of double jeopardy and the sufficiency of the evidence, to resentencing on other counts, and to a new trial. The court held that there was sufficient evidence to convict defendant where a jury could reasonably conclude that defendant had inferentially instructed another individual to kill the victim; that Judge Jones' decision to exclude certain portions of the tapes of jailhouse telephone conversations was not an abuse of discretion and, if the Judge had committed an error, it was harmless; that any residual prejudice from a witness's statement was negligible because the information regarding defendant's arrest was already before the jury; that the record was insufficient to allow adjudication of defendant's ineffective assistance of counsel claim; and that the Double Jeopardy clause did not bar the government from getting "one complete opportunity" to achieve a conviction on the greater offense by retrial of that count where the jury in the first trial convicted defendant on the lesser offense and failed to reach a verdict on the greater offense. The court rejected defendant's remaining claims and affirmed the judgment.

Defendant, once a practicing psychiatrist, defrauded Medicare by receiving funds he was not entitled to receive and then fled the country to live as a fugitive in the Philippines. There, defendant created the website www.liver4you.org, fraudulently promising to provide critically ill patients liver or kidney transplants for certain sums of money. Defendant was subsequently convicted of one count of health care fraud and five counts of wire fraud. Defendant appealed, arguing that the district court committed four procedural errors in calculating defendant's offense level and imposed a substantively unreasonable sentence. The government argued that the court should not consider the four procedural errors because at sentencing the district court stated it would impose "the same sentence" even without some of the alleged errors. The court rejected this contention and emphasized that such predictions were only rarely appropriate. Defendant argued that his website was not mass-marketing pursuant to U.S.S.G. 2B1.1(b)(2)(A)(ii) because he did not initiate contact with his victims where they found his website, which was publicly available online, and emailed him at an address listed on the website. The court rejected defendant's distinction and held that he committed fraud by using the internet to solicit a large number of persons to buy his organ transplant services. Therefore, the court held that the enhancement applied even if defendant did not use the most active marketing method possible. Accordingly, the court affirmed the judgment of the district court.

This criminal appeal arose from a "finite reinsurance" transaction between American International Group, Inc. (AIG) and General Reinsurance Corporation (Gen Re). Defendants, four executives of Gen Re and one of AIG, appealed from judgments convicting them of conspiracy, mail fraud, securities fraud, and making false statements to the Securities and Exchange Commission. Defendants appealed on a variety of grounds, some in common and others specific to each defendant, ranging from evidentiary challenges to serious allegations of widespread prosecutorial misconduct. Most of the arguments were without merit, but defendants' convictions must be vacated because the district court abused its discretion by admitting the stock-price data and issued a jury instruction that directed the verdict on causation.

Defendant appealed the denial of his petition for a writ of habeas corpus where he was convicted of crimes stemming from his involvement in a violent street gang. At issue was whether defendant received ineffective assistance of counsel where defendant alleged that trial counsel failed to advise him as to whether he should accept or reject a particular plea offer by the government. The court held that an evidentiary hearing was necessary to flesh out the sparse record before the court. Accordingly, the court vacated the judgment and remanded for further proceedings.

Defendant appealed from a judgment of the district court for dismissing as untimely his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. 2254. The district court assumed that defendant satisfied the requirements for equitable tolling of a three-month period when he was hospitalized but, nevertheless, concluded that the petition was untimely because he failed to demonstrate reasonable diligence in pursuing his claim in the two-month period between his hospital discharge and filing. The court held that no such demonstration of diligence was required where the petition was filed within one year of the total untolled time after the challenged conviction became final. Accordingly, the district court's judgment of dismissal was vacated and the case was remanded for further proceedings.

Plaintiff brought a pro se action under 42 U.S.C. 1983 against defendants, alleging excessive force and other Eighth Amendment and due process violations in connection with a prison yard altercation. At issue was whether a plaintiff in a lawsuit governed by the Prison Litigation Reform Act of 1995 (PLRA), 42 U.S.C. 1997e(a), was entitled to a jury trial on disputed factual issues relating to his exhaustion of administrative remedies. The court held that the Seventh Amendment did not guarantee a jury trial on factual disputes regarding administrative exhaustion under the PLRA. Accordingly, the judgment of the district court was affirmed.

Defendant plead guilty to narcotics violations in connection with a scheme to import cocaine and was sentenced principally to a term of 235 months imprisonment. On appeal, defendant contended that his sentence was procedurally and substantively unreasonable. The court held that the government's refusal to move for a third-point reduction under U.S.S.G. 3E1.1(b) in this case was based on an unlawful reason because the government could not refuse to move on the grounds that it had been required to prepare for a Fatico hearing. In light of the court's holding, it did not reach the issue of substantive reasonableness, but did reject defendant's arguments regarding the disparity between his sentence and those imposed on his co-defendants; his lack of prior criminal record; and his medical condition. Accordingly, the sentence was vacated and the case was remanded for resentencing.

Defendant appealed from two judgments entered in the district court: (1) convicting him of possessing child pornography in violation of 18 U.S.C. 2252A(a)(5)(B) and (b)(2) (Judgment II) and (2) revoking the supervised release to which he had been sentenced on a prior conviction for violation of section 2252A(a)(5)(B) and imposing a prison term, to be followed by a life term of supervised release, for violations of his prior supervised release conditions (supervised release judgment). On defendant's appeal challenging Judgment II, defendant contended principally that the district court should have dismissed the indictment on the ground that it was procured by his probation officer acting in excess of his statutory and constitutional authority and that, absent dismissal of the indictment, certain self-incriminating statements defendant made to his probation officer, as well as evidence seized pursuant to a search warrant obtained on the basis of those statements, should have been suppressed on the ground that his statements were protected by the Fifth Amendment privilege against self-incrimination. Defendant also argued that the severity of the penalties of the supervised release judgment should be reduced if Judgment II was vacated. The court found no merit in defendant's challenges to Judgment II and therefore, affirmed both judgments.

Defendant, a former Senator in the New York State Legislature, appealed from a judgment entered in district court following his conviction of two counts of mail fraud; one count of conspiracy to commit mail fraud and federal-program fraud; and one count of conspiracy to commit mail fraud, federal-program fraud, and wire fraud. On appeal, defendant contended principally that the district court abused its discretion in denying his motion to withdraw his guilty plea, erred in calculating the imprisonment range recommended by the advisory Sentencing Guidelines, and erred in ordering restitution without proof that the persons characterized by the government as victims were directly harmed by his offense conduct. The court considered all of the parties' contentions in support of their respective positions and, except as indicted, have found them to be without merit. Accordingly, the court vacated the August 23, 2010 order and remanded for further proceedings with respect to the amount of restitution to be ordered and the judgment of conviction, as well as all other aspects of defendant's sentence, were affirmed.