U.S. v. Zedner

Citation401 F.3d 36
Decision Date08 March 2005
Docket NumberDocket No. 04-0821.
PartiesUNITED STATES of America, Appellee, v. Jacob ZEDNER, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Stephen C. King, Assistant United States Attorney for the Eastern District of New York (Roslynn R. Mauskopf, United States Attorney, Emily Berger, Assistant United States Attorney, on brief), Brooklyn, NY, for Appellee.

Edward S. Zas, The Legal Aid Society, Federal Defender Div., Appeals Bureau, New York, NY, for Defendant-Appellant.

Before: LEVAL and RAGGI, Circuit Judges, and STEIN, District Judge.*

LEVAL, Circuit Judge.

Jacob Zedner appeals from his conviction after a jury trial in the United States District Court for the Eastern District of New York (Thomas C. Platt, J.) on six counts of attempting to defraud a financial institution in violation of 18 U.S.C. § 1344. Zedner claims, inter alia, that (1) lapses of time between the indictment and the start of trial violated his statutory and constitutional rights to a speedy trial; (2) the district court abused its discretion when it admitted evidence of his other bad acts; (3) the district court charged the jury incorrectly on conscious avoidance; (4) the court erred in the calculation of intended loss under U.S.S.G. § 2F1.1; (5) the district court misapprehended its authority to depart downward for diminished mental capacity and the loss amount's overstatement of the seriousness of the offense; and (6) the court erred in following the United States Sentencing Guidelines, which unconstitutionally deprive the defendant of the right to a jury trial. We reject contentions (1) through (4); we agree with defendant's contention (5), which requires resentencing and moots contention (6).

BACKGROUND

In March 1996, Jacob Zedner approached a number of financial institutions to open an account using a counterfeit $10 million bond, ostensibly issued by the non-existent "Ministry of Finance of U.S.A." The bond contained numerous spelling mistakes and other errors.

The institutions uniformly refused to open an account for Zedner. One called the United States Secret Service, which arrested Zedner on March 12, 1996. A consensual search of Zedner's briefcase revealed three additional counterfeit bonds, each in the amount of $10 million, which, like the one he attempted to negotiate, were replete with mistakes.1 The grand jury indicted Zedner on April 4, 1996 on various counts of attempting to defraud a financial institution in violation of 18 U.S.C. § 1344, and one count of knowingly possessing counterfeit bonds in violation of 18 U.S.C. § 472.

At the first status conference on June 7, 1996, Zedner's then-attorney failed to appear, and the district court entered an order excluding the delay until the next conference on June 21, 1996, under the Speedy Trial Act, 18 U.S.C. §§ 3161-3174. At the second status conference, Zedner failed to appear, and the proceedings were again delayed until June 26, 1996. On June 26, the court entered an order excluding delay from June 26 through September 6, 1996, by reason of the complexity of the case. On September 6, the case was again adjourned, and the court excluded the delay until November 8, 1996.

On November 8, Zedner requested an adjournment of the case through the end of January. Because the court had lengthy trials pending, the judge expressed concern that Zedner might attempt to invoke speedy trial rights at an inconvenient time and insisted on a "waiver for all time" as a condition of granting the adjournment Zedner requested. The court advised Zedner of his rights, and Zedner executed a written waiver. The district court then entered an order of adjournment to January 31, 1997. Presumably because Zedner had signed a waiver of rights under the Speedy Trial Act "for all time," the judge entered no more orders of exclusion for the duration of the case.

On January 31, 1997, the government answered ready for trial, but Zedner's counsel requested another delay. The district court granted the request and scheduled jury selection for May 5. On May 2, Zedner's counsel, James Hagney, Esq., requested to be relieved on the ground that Zedner wished to assert a defense at trial that counsel believed not to have a "basis in law or fact," namely that the bonds were genuine. The court initially denied Hagney's motion but asked a representative of the Federal Defender Division of the Legal Aid Society to serve as advisory counsel. After Zedner's subsequent completion of a financial affidavit, the court relieved Mr. Hagney and appointed the Federal Defender Division of the Legal Aid Society as Zedner's counsel.

At the May 2 hearing, the court asked Zedner whether he would be willing to submit to a psychiatric examination. With Zedner's consent, the government arranged for an examination, and the court postponed the trial date while awaiting the psychiatrist's report. The psychiatrist issued her report on August 5, 1997, concluding that Zedner was competent to stand trial.

At a status conference on September 8, 1997, Zedner complained about his new attorney and asked to represent himself without an attorney. The court authorized Zedner to proceed pro se with the Federal Defender Division of the Legal Aid Society serving in an advisory capacity. Zedner then sought to serve subpoenas on numerous high government officials including President Clinton, Federal Reserve Chairman Alan Greenspan, Attorney General Janet Reno, and Secretary of State Madeleine Albright. While a magistrate judge was considering various motions to quash Zedner's subpoenas, Zedner moved to dismiss the indictment on the grounds that the government had violated his civil rights and that the agents who investigated him were guilty of treason.

At the status conference on December 17, 1997, the court once again scheduled jury selection, for February 17, 1998. However, on January 30, 1998, Zedner asked the court to adjourn the trial date to allow him to serve additional subpoenas on "The Treasury Department of Treasury International Corporation" and other nonexistent entities. Over the next eight months, the court granted many motions to quash subpoenas while Zedner continued to file motions and request subpoenas for parties unconnected to his case. On October 8, 1998, the court scheduled jury selection for October 14.

The morning the trial was scheduled to begin the court consulted with counsel in chambers while a jury panel waited. The court expressed concern that Zedner was mentally ill. The government disagreed, but moved for a psychiatric examination under 18 U.S.C. § 4241(a) in order to allay the court's concerns. The court dismissed the jury panel and inquired into Zedner's competency, concluding that Zedner was not competent to stand trial. Several days later the court ordered Zedner committed to the custody of the Attorney General for hospitalization and treatment pursuant to 18 U.S.C. § 4241(d). Zedner filed an interlocutory appeal, and in United States v. Zedner (Zedner I), 193 F.3d 562 (2d Cir.1999) (per curiam), we vacated the order of commitment and remanded for a new competency hearing on the ground that a competency hearing of a person whose competence is reasonably doubted should not proceed with that person acting as his own attorney.

The district court convened a status conference on April 4, 2000, but only the government appeared. At the rescheduled status conference held on April 27, 2000, the government and Tracey Gaffey, Esq. of the Federal Defender Division of the Legal Aid Society, now acting on Zedner's behalf, jointly requested that the court schedule the new competency hearing for July 10, 2000. The court complied, and the hearing was held as scheduled in July. At the close of the hearing, the court invited the parties to submit additional briefs on the issue of Zedner's competency. Ms. Gaffey submitted a brief on August 4 arguing that Zedner was competent to stand trial and requesting that the court schedule the case for trial "as soon as possible." The government filed a letter brief on August 11, 2000 taking the position that Zedner was incompetent to stand trial. Zedner filed a pro se brief on August 23, 2000.

In November, however, while the competency motion was on submission, Ms. Gaffey became unavailable to try the case for medical reasons relating to her pregnancy. Assistant U.S. Attorney Leonard Lato explained in a later affidavit that he received a phone call in late November 2000 from the Federal Defender Division of the Legal Aid Society informing him that "Ms. Gaffey would be out of the office for a few weeks for reasons related to her pregnancy." Lato was subsequently advised that "Ms. Gaffey was unlikely to return until some time after Ms. Gaffey gave birth." A month later, Lato discussed Zedner's case with Gaffey and the two agreed that the case did not require immediate attention.2 On March 7, 2001, Zedner moved to dismiss the indictment with prejudice under the Speedy Trial Act and the Speedy Trial Clause of the Sixth Amendment. The court issued a memorandum order on March 21, 2001 denying Zedner's motions on the grounds that the case was complex and Zedner had waived his speedy trial rights "for all time."

Returning to the issue that was submitted to the court by the August briefing, the court found Zedner incompetent to stand trial and ordered him to surrender to the Attorney General for commitment. Zedner appealed, and we affirmed. United States v. Zedner (Zedner II), 29 Fed. Appx. 711 (2d Cir. Feb.21, 2002).

In May 2002, Zedner entered a federal medical facility for psychological evaluation. Near the end of his commitment, Zedner moved to extend his stay by 90 days to allow for a more comprehensive evaluation. On August 27, 2002, Zedner was released. The institution's report found that Zedner was delusional but competent to stand trial. The district court...

To continue reading

Request your trial
15 cases
  • U.S. v. Alston-Graves
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 27, 2006
    ...v. Wasserson, 418 F.3d 225, 237-39 (3d Cir.2005) (improper disposal of hazardous waste, 42 U.S.C. § 6928(d)); United States v. Zedner, 401 F.3d 36, 50-51 (2d Cir.2005) (bank fraud, 18 U.S.C. § 1344); United States v. Sdoulam, 398 F.3d 981, 993-95 (8th Cir.2005) (chemical distribution with r......
  • United States v. Ghailani
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • October 24, 2013
    ...causing vast expense, inefficiency, unfairness, and unjustifiable delay in the administration of criminal justice. United States v. Zedner, 401 F.3d 36, 47 (2d Cir.2005), rev'd on other grounds,547 U.S. 489, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006). Indeed, the Supreme Court has cautioned tha......
  • United States v. Muhtorov
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 8, 2021
    ......714, 736 (1986) (Stevens, J.,. concurring)). . 68 . . The. Mistretta Court's analysis guides us here as to. whether (i) the FISC's Section 702 functions "trench. upon the prerogatives of another Branch,". Mistretta , 488 U.S. ... 2011) (finding that an eleven-year delay, while. "atypical," was "not unconstitutional");. United States v. Zedner , 401 F.3d 36, 48-49 (2d Cir. 2005) (finding a seven-year delay between indictment and. trial did not violate the Sixth Amendment), ......
  • United States v. Muhtorov
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 8, 2021
    ...F.3d 408, 420 (6th Cir. 2011) (finding that an eleven-year delay, while "atypical," was "not unconstitutional"); United States v. Zedner , 401 F.3d 36, 48-49 (2d Cir. 2005) (finding a seven-year delay between indictment and trial did not violate the Sixth Amendment), rev'd on other grounds ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT