United States v. Leslie
658 F.3d 140
| 2d Cir. | 2011Background
- Leslie led a Bridgeport-area bank fraud conspiracy using ATMs to move funds from checks on closed/open accounts in 2004–2005.
- He was arrested and pled guilty in Connecticut state court for bank fraud from 2004 to April 2005; remained free on bond briefly, then began a four-year state prison sentence on July 1, 2005.
- Released March 16, 2007, Leslie was re-incarcerated July 24, 2007 for a parole violation; during incarceration, co-conspirators continued the fraud.
- Federal charges covered April 2005 to December 2007; plea agreement fixed actual loss at $310,475 and intended loss at $509,447.
- At sentencing, Leslie argued he should be responsible only for losses from April 2005 to July 1, 2005, which would yield a 27–33 month range; the district court attributed losses for the entire conspiracy, resulting in a 14-level enhancement, but ultimately used actual losses for a 51–63 month range.
- The district court denied Leslie’s withdrawal argument, determining he remained in the conspiracy during incarceration and his co-conspirators continued the scheme.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether incarceration creates a burden-shifting presumption of withdrawal | Leslie | Leslie | Burden stays on defendant to prove withdrawal; incarceration alone not withdrawal |
| Whether imprisonment constitutes affirmative withdrawal evidence in sentencing | Leslie | Leslie | Imprisonment may be evidence but does not by itself prove withdrawal |
Key Cases Cited
- United States v. Pizzonia, 577 F.3d 455 (2d Cir. 2009) (burden of proof for withdrawal at trial; affirmative defense)
- United States v. Flaharty, 295 F.3d 182 (2d Cir. 2002) (withdrawal requires affirmative act; mere cessation insufficient)
- United States v. Eppolito, 543 F.3d 25 (2d Cir. 2008) (withdrawal requires affirmative disavowal to authorities or co-conspirators)
- United States v. Diaz, 176 F.3d 52 (2d Cir. 1999) (imprisonment as evidence in withdrawal analysis)
- United States v. Massino, 546 F.3d 123 (2d Cir. 2008) (incarceration does not create rebuttable presumption of withdrawal at sentencing)
- United States v. Berger, 224 F.3d 107 (2d Cir. 2000) (resignation from criminal enterprise alone does not prove withdrawal)
- United States v. Salameh, 152 F.3d 88 (2d Cir. 1998) (imprisonment alone is not withdrawal; need additional evidence)
- United States v. Morales, 185 F.3d 74 (2d Cir. 1999) (incarceration duration and activity affect withdrawal sufficiency)