Thursday, May 26th, 2016

No Wins for Criminal Defendants Today

The Court issued two summary orders in criminal cases today. Neither Appellant prevailed.

  1. United States v. Humphries, No. 14-985-cr (2d Cir. May 26, 2016) (Cabranes, Straub, and Lohier)

Humphries was convicted after a jury trial of interstate travel in aid of racketeering, conspiracy to commit wire fraud to defeat Canadian tax revenue, conspiracy to manufacture tobacco products without a license, and money laundering. He was sentence to 72 months in prison.

On appeal, Humphries raised four arguments: (1) insufficiency of the trial evidence; (2) improper preclusion of certain affirmative defenses; (3) constructive amendment of the indictment; and (4) improper failure to suspend jury deliberations when it became “apparent” that he was no longer competent to stand trial. The Court addressed only the sufficiency argument, rejecting the other three claims without discussion.

The Court first held that the evidence was sufficient to establish Humphries’s intent to “distribute the proceeds of …unlawful activity,” as required to sustain his conviction for interstate travel in aid of racketeering. The evidence showed, among other things, that Humphries traveled from South Carolina to an Indian reservation in New York and retrieved $70,000 from two men involved in a marijuana distribution conspiracy. One of the men had warned Humphries not to take the currency, which was stored in a shoebox and wrapped in packing tape, because it “stunk” of marijuana. But Humphries took it anyway. When police stopped Humphries for a traffic infraction, he disclosed the cash in the shoebox but failed to disclose an additional $18,000 in the vehicle. Additionally, a witness testified that he had informed Humphries that his payments were the proceeds of marijuana trafficking.

The Court next upheld the sufficiency of the evidence to establish Humphries’s intent to conspire to commit wire fraud. The proof showed that Humphries sent weekly loads of “Canadian Blend” tobacco to an unlicensed cigarette producer (MHP) located at the U.S.–Canada border, in exchange for U.S. currency. MHP smuggled cigarettes into Canada without paying substantial taxes. In recorded conversations, Humphries and his co-conspirator avoided saying the word “tobacco,” referring to deliveries instead as the arrival of a “friend.” Humphries also expressed concern about the police. Viewed in the light most favorable to the government, the jury properly could have found that Humphries had the requisite fraudulent intent.

No more successful was Humphries’s argument that the government failed to prove “that he was a partner in MHP” or that any overt acts took place in furtherance of the conspiracy.  Humphries falsely told a police investigator that he had a federal license to sell tobacco. And there was evidence of Humphries’s extensive involvement with MHP and his expressed concerns about law enforcement surveillance. Accordingly, the jury could have reasonably found the requisite intent to manufacture tobacco without a license.

  1. United States v. Pecker, No. 15-2830-cr (2d Cir. May 26, 2016) (Kearse, Winter, and Jacobs)

Mr. Pecker, who was represented by Federal Defenders, challenged his 11-month prison term for a violation of supervised release (VOSR). He argued that the district court committed plain error by using Criminal History Category (CHC) III to compute his Guidelines range at the VOSR sentencing. He claimed that, because no criminal history category was determined at his original sentencing, the court should have calculated his criminal history score de novo at the VOSR sentencing, and should have used CHC I.

The Court held that even if there were error, Pecker could not show prejudice because CHC III was correct. The Court concluded that Pecker’s prior convictions for harassment warranted criminal history points, and gave him a total of 5 points, placing him in CHC III, the same category used to sentence him. Accordingly, he could not show prejudice.

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