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

Defendants, Narcisa Veliz Novack and her brother Cristobal Veliz, appealed from convictions of numerous offenses related to defendants' participation in an association-in-fact Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.c. 1962, enterprise with the primary purpose of assaulting Novack's husband and her mother-in-law. The court rejected Veliz's argument that his conduct did not violate 18 U.S.C. 1512(b)(3) because solicitation to murder does not constitute the use or attempted use of “intimidation, threat[s], or corrupt[] persua[sion].” The court held that solicitation of a third party to murder a witness constitutes attempted corrupt persuasion under the statute. The court further concluded that the evidence that Veliz had committed multiple related crimes across multiple states was sufficient to support the jury’s finding that communication with a federal investigator was reasonably likely. The court rejected Veliz's argument that his witness-tampering convictions must be vacated because he has not shown reasonable probability that the challenged instruction affected the jury’s verdict. Finally, the court rejected Veliz's contention that the inclusion of the term "physical force" in the jury charge constructively amended the indictment because the government’s theory of guilt was consistent from indictment to summation and the jury clearly based its verdict on the conduct charged in the indictment. The court addressed and rejected the remaining challenges in a summary order. Accordingly, the court affirmed the judgment. View "United States v. Veliz" on Justia Law

Defendant, convicted of healthcare fraud and aggravated identity theft, appealed the district court's orders granting the government writs of garnishment directing that certain monies owned by defendant, but in the control of third parties, be transferred to the United States to satisfy his restitution obligations. Defendant argued that the attorney representing him at the writ of garnishment hearing labored under a conflict of interest in violation of defendant's Sixth Amendment right to counsel, and that the district court committed plain error in failing to inquire as to the alleged conflict. The court found that there is no Sixth Amendment right to counsel at a writ of garnishment hearing brought to satisfy restitution or forfeiture judgments, and the district court thus did not have a duty to inquire. The court further concluded that, while the imposition of restitution falls within a defendant’s criminal proceedings, a writ of garnishment is a civil remedy falling outside the scope of the Sixth Amendment’s protections. Accordingly, the court affirmed the judgment. View "United States v. Cohan" on Justia Law

Defendant challenged the government's restraint of his property, including his cars and two bank accounts, during his prosecution on wire fraud charges. The court found merit in defendant's claim that his Fourth Amendment rights were violated because the government seized his assets without seeking a warrant, and that there has been no judicial finding as to whether probable cause supports the forfeitability of the seized assets. The court held that exigent circumstances do not support the government’s indefinite seizure in the absence of a warrant and, therefore, the court vacated the district court's denial of defendant's motion to vacate the order and remanded for the district court to determine whether probable cause supports the forfeitability of defendant's assets. View "United States v. Cosme" on Justia Law

Defendants Gioeli and Saracino appealed from convictions of crimes committed as members of the Colombo crime family. On appeal, Gioeli argued that: (1) his guilty verdict was not supported by sufficient evidence; (2) the government’s failure to disclose statements by a confidential source until after trial constituted a Brady violation; (3) the government’s seizure of certain materials from his home violated the Fourth Amendment, and those materials should have been suppressed; (4) two of the three racketeering acts the jury found to have been proven against him were multiplicitous; and (5) the government’s conduct throughout the investigation and prosecution of this case was so outrageous that it violated his due process rights. Saracino also challenged the district court’s Brady ruling and further argued that: (1) the court erred in denying his motion for severance; and (2) the court violated his constitutional rights at sentencing by, inter alia, taking into account uncharged crimes and crimes of which he had been acquitted, and erred by doing so without holding a hearing pursuant to United States v. Fatico. The court resolved all of defendants' arguments in the government's favor and affirmed the judgment. View "United States v. Gioeli" on Justia Law

Defendants appealed from judgments following a jury trial convicting them of conspiracy to commit mail and wire fraud in connection with the sale of coins and conspiracy to engage in money laundering. The court concluded that the district court did not abuse its discretion in admitting the testimony of experts or its decision that the admission of their testimony does not warrant a new trial. The court concluded, however, that the district court failed to review de novo the recommendations of the magistrate judge for restitution and forfeiture. The court concluded that defendants' remaining arguments lacked merit. Accordingly, the court affirmed the judgment of the district court in all respects except that the matter is remanded for de novo review of the magistrate judge's reports and recommendations concerning restitution and forfeiture. View "United States v. Romano" on Justia Law

Petitioner pled guilty to one count of conspiracy to distribute cocaine in 2009 and was sentenced to 151 months' imprisonment. Petitioner seeks leave to file a successive 28 U.S.C. 2255 motion raising claims of ineffective assistance of counsel. The court held that, although petitioner's section 2255 motion challenging the legality of his 2009 conviction and sentence was previously denied on the merits, his proposed section 2255 motion is not “second or successive” under 28 U.S.C. 2255(h) because it seeks only to reinstate his direct-appeal rights and therefore does not challenge the legality of the sentence imposed. Accordingly, the court denied the successive motion as unnecessary and transferred the matter to the district court with instructions that petitioner's section 2255 motion be accepted for filing. View "Carranza v. United States" on Justia Law

Petitioner, convicted of criminal possession of a weapon, appealed the denial of his petition for a writ of habeas corpus under 28 U.S.C. 2254. The district court issued a certificate of appealability on the issue of whether habeas relief is warranted on the ground that petitioner's Confrontation Clause right was violated by the state trial court’s order precluding petitioner from cross‐examining his wife, the main witness against him at trial, about her motive for testifying against him. The court concluded that the limitation imposed on petitioner’s ability to cross‐examine the key witness against him at trial was contrary to clearly established Supreme Court Confrontation Clause jurisprudence and the error was not harmless. Accordingly, the court reversed and remanded with instructions. View "Nappi v. Yelich" on Justia Law

The United States appealed the district court's order suppressing drugs and a firearm seized incident to defendant's arrest. The court concluded as a matter of law that the officers’ observations of defendant walking down a public street, carrying a beer‐sized can wrapped in a brown paper bag, which object he held in a cautious manner so as to avoid spillage, are articulable, objective facts that together provided reasonable suspicion to support a brief stop to investigate whether defendant was then violating a local open‐container ordinance. Therefore, defendant's ensuing arrest and the seizure of contraband incident thereto were not tainted by an unlawful stop warranting suppression of the seized items. The court reversed the suppression order and remanded for further proceedings. View "United States v. Singletary" on Justia Law

Defendant, convicted of access device fraud, appealed from the district court's judgment sentencing him to pay restitution both to his victims and to third-party providers of compensation for losses arising from his fraudulent activities. Because the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. 3663A, limits a defendant’s restitution amount to the actual losses suffered by his victims, and because third-party providers of compensation do not qualify as “victims” whose losses may expand the defendant’s restitution liability, the district court erred in ordering defendant to pay more in restitution than the victims’ actual losses. Therefore, the court vacated the restitution order and remanded for recalculation. View "United States v. Thompson" on Justia Law

Defendant appealed his sentence after he plead guilty to violating for the second time the conditions of his supervised release by associating with a convicted felon. Defendant spoke to a member of his sex offender treatment group in the subway after one of their group sessions. The court concluded that the district court failed to state a specific reason for the imposition of an above-Guidelines sentence. Accordingly, the court vacated the sentence and remanded for resentencing. View "United States v. Aldeen" on Justia Law