United States v. Meszaros , 381 F. App'x 55 ( 2010 )

09-1912-cr
United States v. Meszaros
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 18 th day of June, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 AMALYA L. KEARSE,
9 PIERRE N. LEVAL,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 UNITED STATES OF AMERICA,
14 Appellee,
15
16 -v.- 09-1912-cr
17
18 STEVEN MESZAROS,
19 Defendant-Appellant.
20 - - - - - - - - - - - - - - - - - - - -X
21
22 FOR APPELLANT: Arza Feldman, Feldman and
23 Feldman, Uniondale, NY.
24
25 FOR APPELLEE: Allen L. Bode, Jo Ann M.
26 Navickas, Assistant United
27 States Attorneys, on behalf of
28 Benton J. Campbell, United
1
1 States Attorney for the Eastern
2 District of New York, Brooklyn,
3 NY.
4
5
6 Appeal from a judgment of the United States District
7 Court for the Eastern District of New York (Bianco, J.).
8
9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10 AND DECREED that the judgment of the district court be
11 AFFIRMED in all respects except that, as to the sentence
12 imposed with respect to Count Two, we VACATE and REMAND. We
13 assume the parties’ familiarity with the underlying facts,
14 the procedural history, and the issues presented for review.
15
16 “The indictment or information may charge a defendant
17 in separate counts with 2 or more offenses if the offenses
18 charged . . . are of the same or similar character, or are
19 based on the same act or transaction, or are connected with
20 or constitute parts of a common scheme or plan.” Fed. R.
21 Crim. P. 8(a). “Similar charges include those that are
22 somewhat alike, or those having a general likeness to each
23 other.” United States v. Rivera, 546 F.3d 245, 253 (2d Cir.
24 2008) (internal quotation marks omitted). “We review the
25 propriety of joinder de novo as a question of law.” United
26 States v. Tubol, 191 F.3d 88, 94 (2d Cir. 1999).
27
28 While Meszaros identifies some differences between the
29 charges, the basic facts of all the wire fraud counts are
30 overwhelmingly similar: While working at a day trading
31 firm, Meszaros induced investments by promising that he or
32 his firm could generate a high rate of return; he lost this
33 money through a combination of bad investments and
34 conversion to his personal use; he showed the investors
35 false documentation of positive returns; and these
36 representations of positive returns dissuaded investors from
37 withdrawing their money, and induced further investments
38 that he likewise went on to lose or consume. Cf. Rivera,
39 546 F.3d at 253-54.
40
41 “If the joinder of offenses or defendants in an
42 indictment, an information, or a consolidation for trial
43 appears to prejudice a defendant or the government, the
44 court may order separate trials of counts, sever the
45 defendants’ trials, or provide any other relief that justice
46 requires.” Fed. R. Crim. P. 14(a). “The denial of a motion
47 to sever under Rule 14 is reviewed for abuse of discretion
2
1 and will not be overturned unless the defendant demonstrates
2 that the failure to sever caused him substantial prejudice
3 in the form of a miscarriage of justice.” United States v.
4 Sampson, 385 F.3d 183, 190 (2d Cir. 2004), cert. denied, 544
5 U.S. 924 (2005) (internal quotation marks omitted).
6 Meszaros makes no convincing argument as to prejudice that
7 he suffered from joinder.
8
9 Meszaros notes that the district court erred by
10 sentencing him to 108 months’ imprisonment on Count Two (to
11 run concurrently with terms of 108 months’ imprisonment on
12 Counts Three through Five). The government concedes that
13 this sentence was in error, as it exceeded the statutory
14 maximum sentence in place in April 2001 when the crime
15 charged in Count Two was committed. See 18 U.S.C. § 134316 (2000). “[L]imited resentencing [is] the default rule where
17 there was a sentencing error.” United States v. Rigas, 583
18 F.3d 108, 115 (2d Cir. 2009) (emphasis in original). When,
19 as here, the vacated sentence runs concurrent to several
20 that are affirmed, there is no reason to deviate from that
21 default rule.
22
23 Finding no merit in Meszaros’s remaining arguments, we
24 hereby AFFIRM the judgment of the district court except for
25 the sentence on Count Two. We VACATE and REMAND for limited
26 re-sentencing of Count Two.
27
28
29 FOR THE COURT:
30 CATHERINE O’HAGAN WOLFE, CLERK
31
3