United States v. Gowing and Scheringer, Nos. 10-4037-cr, 11-683-cr (2d Cir. June 6, 2012) (Winter, Straub, Lynch, CJJ) (per curiam)
The court’s latest per curiam looks at 18 U.S.C. § 3147, which enhances the sentence of a person “convicted of an offense committed while on release.”
The underlying case involved a massive oil contract fraud orchestrated by Scheringer. Gowing was an attorney who represented Scheringer in a civil fraud suit, who eventually joined the fraud. Although he initially refused to invest or refer others to the scheme, he eventually helped solicit funds from victims. Both defendants had been released on bail by 2006, but continued to engage in the scheme. Calls recorded by the government in 2008 captured them speaking about obtaining more money from victims. Even after Scheringer was remanded in 2009, his prison calls reflected Gowing’s efforts to continue raising money from victims.
On appeal, Gowing challenged the district court’s application of § 3147, arguing that the section applied only where a defendant on release commits a second, distinct offense and not where the defendant is arrested and released but then continues to commit that same crime while on release.
The circuit rejected this argument based on the text of the statute, which applies whenever a “person” is “convicted of an offense committed while released.” It does not indicate that the offense committed while on release must be a “separate or second offense.” Nor is Gowing’s reading is supported by the statute’s legislative history, which discusses the particular risk to public safety posed by those who commit “another” offense while on bail. There is “no reason to believe that Congress meant this in a narrow or technical way.” It is enough that the defendant has committed another criminal act, even if he is not chargeable with a second offense for continuing the original crime.