United States v. Meszaros

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. § 1343 16 (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