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

Defendant pleaded guilty to wire fraud conspiracy and aggravated identity theft. On appeal, defendant challenged the district court's application of a six-level enhancement under USSG 2B1.1(b)(2)(C) because the offense involved 250 or more victims, and a four-level enhancement under USSG 3B1.1(a) because defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive. The court concluded that defendant's sentence is procedurally reasonable and the district court properly applied the enhancements at issue. The court remanded for the limited purpose of allowing the district court to amend the written judgment to conform it to the oral sentence. The court otherwise affirmed. View "United States v. Jesrum" on Justia Law

Defendant pleaded guilty to wire fraud conspiracy and aggravated identity theft. On appeal, defendant challenged the district court's application of a six-level enhancement under USSG 2B1.1(b)(2)(C) because the offense involved 250 or more victims, and a four-level enhancement under USSG 3B1.1(a) because defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive. The court concluded that defendant's sentence is procedurally reasonable and the district court properly applied the enhancements at issue. The court remanded for the limited purpose of allowing the district court to amend the written judgment to conform it to the oral sentence. The court otherwise affirmed. View "United States v. Jesrum" on Justia Law

Defendant, a lawyer and real estate broker, appealed the district court's imposition of criminal forfeiture in the amount of $1,273,285.50, arguing that the district court erred when it declined to consider defendant’s age, health, and financial condition when it issued the forfeiture order. Defendant was convicted of charges related to his participation in a kickback scheme involving the construction of new Dick Sporting Goods stores. The court held that the court reviewing a criminal forfeiture under the Excessive Fines Clause may consider - as part of the proportionality determination required by United States v. Bajakajian - whether the forfeiture would deprive the defendant of his future ability to earn a living. However, the court held that courts should not consider a defendant’s personal circumstances as a distinct factor. In this case, the court concluded that the challenged forfeiture is constitutional because it is not “grossly disproportional” to the gravity of defendant’s offenses. View "United States v. Viloski" on Justia Law

Defendants Binday, Kergil, and Resnick, insurance brokers, appealed their convictions stemming from their involvement in an insurance fraud scheme where they induced insurers to issue life insurance policies that defendants sold to third‐party investors, by submitting fraudulent applications indicating that the policies were for the applicants’ personal estate planning. The court concluded that there was sufficient evidence that defendants contemplated a cognizable harm under the mail and wire fraud statutes; the indictment was not constructively amended because the allegations in the indictment and the government’s proof at trial substantially correspond; and some aspects of the defendants’ challenge to the jury instruction are waived, while the remainder fail on the merits. The court rejected defendants' remaining challenges to their sentences and to the obstruction of justice convictions. The court affirmed the judgment. View "United States v. Binday" 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

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

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, the former CEO and chairman of the board of directors at CUC and former chairman of CUC's successor, was convicted of one count of conspiracy to commit securities fraud and two counts of making false statements in SEC filings. On appeal, defendant challenged the denial of his motion for a new trial under Federal Rule of Criminal Procedure 33. Applying United States v. Owen, the court concluded that the former CUC chief financial officer's testimony did not constitute newly discovered evidence. Accordingly, the court affirmed the judgment. View "United States v. Forbes" on Justia Law

Roy was convicted of conspiracy to commit wire fraud, 18 U.S.C. 1349; three counts of wire fraud, 18 U.S.C. 1343; and conspiracy to commit wire fraud and bank fraud, 18 U.S.C. 1349. The Second Circuit affirmed, rejecting an argument that the district court erred by failing to instruct the jury that proof of an overt act is required for a conviction under the two section 1349 conspiracy charges. Proof of an overt act is not required for a conspiracy conviction under 18 U.S.C. 1349. View "United States v. Roy" on Justia Law

Defendant, employed as the property manager of a condominium association, was convicted of wire fraud for embezzling funds from the condominium association and bank fraud for taking out an unauthorized loan in the condominium association's name. The district court applied a four-level sentencing enhancement under U.S.S.G. 2B1.1(b)(2)(B), which applies to offenses involving 50 or more victims. The court affirmed the sentence, concluding that the district court properly counted the individual tenants as victims (more than 70 tenants total) and, therefore, properly applied the enhancement. View "United States v. Iovino" on Justia Law