     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




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