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

Miller and Jenkins entered into a civil union in Vermont in 2000. In 2002, Miller gave birth to IMJ. Miller took IMJ to Virginia. Jenkins remained in Vermont. In 2003, a Vermont court dissolved the union and awarded custody to Miller. Miller repeatedly refused to respect Jenkins’ visitation rights. Following several contempt citations, the Vermont court awarded sole custody to Jenkins in 2009. While the litigation was pending, Miller kidnapped IMJ, fleeing to Nicaragua. The government issued subpoenas under the Stored Communications Act 18 U.S.C. 2703(c)(2), rather than a court‐approved warrant, to a cell phone company, seeking billing records spanning 28 months and other information. As confirmed by Zodhiates’ cell phone and email records, which were introduced at trial, Zodhiates drove Miller and IMJ from Virginia to Buffalo, where they crossed into Ontario. Miller remains a fugitive. Zodhiates coordinated delivery of Miller's personal items to Nicaragua. Zodhiates was convicted of conspiring with and aiding and abetting Miller to obstruct the lawful exercise of parental rights, International Parental Kidnapping Crime Act, 18 U.S.C. 371, 1204, and 2. The district court declined to suppress inculpatory location information garnered from his cell phone records. The Second Circuit affirmed, rejecting arguments under the Fourth Amendment and that the charge to the jury, referring to Vermont family law, denied Zodhiates a fair trial. The court noted that in 2011 a warrant was not required for cell records so the government acted in good faith. View "United States v. Zodhiates" on Justia Law

Lloyd pleaded guilty to conspiracy to possess with intent to distribute controlled substances, 21 U.S.C. 841(a)(1), 841(b)(1)(A), 841(b)(1)(B), and 846, and possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. 924(c)(1), based on the “Pinkerton” theory of co-conspirator liability. The court sentenced Lloyd to 25 years in prison, the mandatory minimum term for these offenses. Lloyd argued that the court failed to satisfy requirements of Federal Rule of Criminal Procedure 11 that a district judge accepting a plea personally inform the defendant of the “nature of each charge” as to which the defendant is pleading guilty, and determine “that there is a factual basis for the plea. He also claimed ineffective assistance of counsel. The Second Circuit affirmed. The court erred by failing to ensure that Lloyd understood “the nature of each charge,” but the record does not establish that but for this Rule 11 violation Lloyd would not have pleaded guilty; Lloyd has not demonstrated that his substantial rights were violated. The court adequately “determine[d] that there is a factual basis for the plea.” Lloyd’s substantive arguments regarding Pinkerton liability were barred by the appeal waiver in his plea agreement. The court declined to consider the ineffective assistance claim; Lloyd may pursue it in habeas corpus proceedings. View "United States v. Lloyd" on Justia Law

The Second Circuit affirmed defendant's convictions and sentence for conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine and a quantity of MDMA, and possessing a firearm in furtherance of that drug trafficking offense. The court held that the evidence at trial was sufficient to convict defendant of conspiring to distribute five kilograms or more of cocaine; the trial record offered ample evidence from which a jury could infer that defendant carried his service weapon not because he was obligated to do so, but for the purpose of protecting a coconspirator during drug transactions; and the coconspirator's testimony was sufficient for the jury to find the requisite nexus between defendant's possession of the shotgun and cocaine distribution activities. The court also held that the district court did not err in denying defendant's motion for a new trial based on the coconspirator's allegedly false testimony and on newly discovered evidence regarding the coconspirator's post-trial misconduct in prison. Finally, the court held that defendant's sentence was not procedurally unreasonable. View "United States v. Alston" on Justia Law

The Second Circuit affirmed defendant's conviction for conspiracy to distribute drugs. The court held that the evidence was sufficient to show that defendant conspired to distribute more than 100 grams of heroin. The court also held that the district court did not err in denying defendant's request to conduct post-trial interviews of jurors approximately five weeks after the jury verdict. In this case, Juror No. 10's allegation that an unnamed juror said, "he knew the defendant was guilty the first time he saw him," without more, did not constitute clear, strong, and incontrovertible evidence that this juror was animated by racial bias or hostility, providing reasonable grounds for further inquiry. Furthermore, Juror No. 10's email did not provide sufficient evidence to trigger mandatory post‐trial juror interviews because Juror No. 10's email did not constitute clear, strong, substantial and incontrovertible evidence that a specific, non‐speculative impropriety had occurred. View "United States v. Baker" on Justia Law

The Second Circuit vacated the district court's grant of defendant's motion to dismiss two counts of an indictment charging him with federal-program embezzlement. Defendant, a former New York State Senator, allegedly embezzled funds from escrow accounts that he oversaw in his capacity as a referee for foreclosure actions. The court agreed with the government that the district court erred by concluding pretrial, as a matter of law, that defendant necessarily formed the fraudulent intent required for the charged embezzlements -- and thus completed those embezzlements -- once he failed to remit the funds. Therefore, the court held that the district court made a premature factual determination regarding the time at which defendant, if guilty, formed the requisite fraudulent intent. The court reinstated the two federal-program embezzlement counts and remanded for further proceedings. View "United States v. Sampson" on Justia Law

The Second Circuit affirmed defendant's conviction for obstruction of justice and making false statements to federal agents. Defendant, a former New York State Senator, was convicted of crimes related to his efforts to use his position in the Senate to provide a local businessman with special favors. Defendant provided the businessman with these favors in exchange for a loan that was given to defendant to reimburse funds that he had embezzled, but that he could not repay.The court held that United States v. Hernandez, 730 F.2d 895 (2d Cir. 1984), and United States v. Masterpol, 940 F.2d 760 (2d Cir. 1991), barred the government from prosecuting an individual under 18 U.S.C. 1503(a) for intimidating and threatening witnesses or corruptly persuading witnesses to recant their testimony. However, these cases did not bar the government from prosecuting an individual under section 1503(a) for an inchoate endeavor to witness tamper. The court also held that the district court did effectively instruct the jury on whether defendant willfully caused an obstruction of justice under 18 U.S.C. 2; the evidence was sufficient to convict defendant for making a false statement; the district court district court did not abuse its discretion—or violate the Confrontation Clause—in either of defendant's challenged evidentiary rulings; and defendant's sentence was reasonable. View "United States v. Sampson" on Justia Law

Defendant appealed her conviction and sentence for theft of government property in violation of 18 U.S.C. 641. The Second Circuit held that defendant did not waive her right of appeal; the district court was not permitted to order restitution for property stolen outside the limitation period because defendant did not consent to pay such restitution; and violations of section 641 did not constitute continuing offenses, rendering her liable for restitution for funds embezzled outside the limitation period. Accordingly, the court vacated in part and remanded for determination of the proper restitution amount within the limitation period. View "United States v. Green" on Justia Law

The Second Circuit affirmed defendant's conviction on five counts of drug and gun related offenses. The court held that the district court correctly determined that there was no unreasonable search in violation of the Fourth Amendment where the undisputed evidence showed that defendant expressly consented to the officers entering his apartment and the consent implicitly extended to the police dog; given that the officers and dog were lawfully in the apartment, defendant had no legitimate or reasonable expectation of privacy in airborne particles bearing odors; and thus the district court did not err in denying defendant's motion to suppress.The court also held that defendant's Fifth and Sixth Amendment rights to equal protection and trial by a jury was not violated where any procedural error in dismissing Juror No. 8 was harmless. In this case, given the district court's permissible finding that Juror No. 8 was unable to read or write, the conclusion that he was not qualified to serve as a juror was correct. Furthermore, had Juror No. 8 been fully vetted during voir dire, leading to his timely disqualification, the jury would have included just one black juror, as it eventually did. View "United States v. Iverson" on Justia Law

The Second Circuit affirmed the district court's judgment after defendant pleaded guilty to tax evasion and to corruptly endeavoring to obstruct and impede the due administration of the internal revenue laws. Defendant, the founder of an investment management firm, was sentenced to pay restitution of $37 million, serve a 70‐month term of imprisonment, and pay a $10 million fine. The Second Circuit held that the district court did not err in calculating the fine range recommended by the Sentencing Guidelines; defendant was given adequate opportunity to inform the district court of his financial condition and ability to pay a fine; and imposing a $10 million fine was within the district court’s discretion. Defendant's motion to stay his sentence pending this appeal was moot. View "United States v. Zukerman" on Justia Law

The Second Circuit reversed the district court's two pretrial orders suppressing wiretap evidence and GPS data. The court held that the untainted portions of the First Wiretap Affidavit made ample showings to support the authorizing judge's determinations of both probable cause and necessity, and the inclusion of the omitted information as to Previous Authorizations would not have diminished those showings; the district court clearly erred in finding that the mistakes by the wiretap applicant were intentional rather than inadvertent; and the district court failed to apply the test established by Franks v. Delaware, 438 U.S. 154 (1978), where such evidence should not be suppressed because the mistakes were not material.The court also held that the GPS monitoring of defendant was permissible because it was reasonably related to his parole officers' duties; defendant, as a parolee who chose to be placed on GPS monitoring rather than be charged with parole violations and possibly returned to prison, and who acknowledged that the monitoring would occur 24 hours a day, seven days a week, until the end of his period of supervision, had no reasonable or legitimate expectation of privacy that was violated by such monitoring; and thus the GPS generated data should not have been suppressed. View "United States v. Lambus" on Justia Law