Bronx Politician Didn’t Wait Too Long to Appeal

     MANHATTAN (CN) – The Second Circuit revived the appeal of an imprisoned former New York state senator who embezzled from a charity in his Bronx district.
     After pleading guilty to fraud and conspiracy, former Sen. Efrain Gonzalez Jr. was sentenced in 2010 to a seven-year federal prison sentence.
     Prosecutors said the politician used the funds to fund a lavish lifestyle that included premium New York Yankees tickets, rent for two luxury homes and college tuition for his daughter.
     Though the court initially ordered Gonzalez to pay $122,775 in restitution to a charity in his district, the West Bronx Neighborhood Association, the Second Circuit found a year later that this judgment overstated the charity’s losses.
     The trial court set the restitution order at just over $92,000 on remand in March 2013.
     Rather than appeal that order, the former senator filed a motion six months later, contending that the government had threatened a witness who would have testified for him.
     Though the trial court struck down that Section 2255 motion as barred by a one-year statute of limitations, a three-judge panel with the Second Circuit vacated that finding on July 2.
     Critical to the decision is the difference between remanding a case for substantive proceedings and giving a trial court “the ministerial task of entering a new judgment.”
     “Restitution is a serious component of criminal punishment, and calculating the restitution amount is hardly ministerial,” the unsigned decision states.
     The judges also examined “the law of finality” as it applied to restitution laws in particular, and found that the statute of limitations calendar in such cases does not begin until the federal court that executed the judgment “disassociates itself from the case, leaving nothing [else] to be done.”
     Though Gonzalez could have filed the Section 2255 motion after the 2011 reversal, “he was also free to await the conclusion of the criminal proceedings – after the March 2013 Order – before deciding whether to file a § 2255 motion and deciding what claims to include in the motion,” the 18-page opinion states.
     The decision also cites a federal statute that gives litigants like Gonzalez the option to wait until a final verdict has been issued on all components of criminal proceedings before beginning the process of “collaterally attacking his conviction.”
     Gonzalez had until March 2014 to file motions or appeals that were in any way connected to his criminal proceedings, making his September 2013 motion allowable and reviewable, the court found.

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