United States v. Meszaros

381 F. App'x 55

• Court: Court of Appeals for the Second Circuit
• Decided: June 18, 2010
• Docket: 09-1912-cr
• Status: Unpublished

Opinion

SUMMARY ORDER

“The indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged ... are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.” Fed. R.Crim.P. 8(a). “Similar charges include those that are somewhat alike, or those having a general likeness to each other.” United States v. Rivera, 546 F.3d 245, 253 (2d Cir.2008) (internal quotation marks omitted). “We review the propriety of joinder de novo as a question of law.” United States v. Tubol, 191 F.3d 88, 94 (2d Cir.1999).

While Meszaros identifies some differences between the charges, the basic facts of all the wire fraud counts are overwhelmingly similar: While working at a day trading firm, Meszaros induced investments by promising that he or his firm could generate a high rate of return; he lost this money through a combination of bad investments and conversion to his personal use; he showed the investors false documentation of positive returns; and these representations of positive returns dissuaded investors from withdrawing their money, and induced further investments that he likewise went on to lose or consume. Cf. Rivera, 546 F.3d at 253-54.

“If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice requires.” Fed. R.Crim.P. 14(a). “The denial of a motion to sever under Rule 14 is reviewed for abuse of discretion and will not be overturned unless the defendant demonstrates that the failure to sever caused him substantial prejudice in the form of a miscarriage of justice.” United States v. Sampson, 385 F.3d 183, 190 (2d Cir.2004), cert. denied, 544 U.S. 924, 125 S.Ct. 1642, 161 L.Ed.2d 483 (2005) (internal quotation marks omitted). Meszaros makes no convincing argument as to prejudice that he suffered from joinder.

Meszaros notes that the district court erred by sentencing him to 108 months’ imprisonment on Count Two (to run concurrently with terms of 108 months’ imprisonment on Counts Three through Five). The government concedes that this sentence was in error, as it exceeded the statutory maximum sentence in place in April 2001 when the crime charged in Count Two was committed. See 18 U.S.C. § 1343 (2000). “[L]imited resentencing [is] the default rule where there was a sentencing error.” United States v. Rigas, 583 F.3d 108, 115 (2d Cir.2009) (emphasis in original). When, as here, the vacated sentence runs concurrent to several that are affirmed, there is no reason to deviate from that default rule.

Finding no merit in Meszaros’s remaining arguments, we hereby AFFIRM the judgment of the district court except for the sentence on Count Two. We VACATE and REMAND for limited re-sentencing of Count Two.