Sunday, April 26th, 2009

A Small Triumph

United States v. Hertular, No. 07-1453-cr (2d Cir. April 6, 2009) (Straub, Raggi, CJJ, Session, DJ)

Robert Hertular was convicted after a jury trial of running a large-scale cocaine importation ring, obstruction of justice, and misdemeanor assault of a federal officer under 18 U.S.C. § 111. He was sentenced to 400 months’ imprisonment on the drug counts, 120 months concurrent on the obstruction, and 12 months concurrent on the assault. On appeal, the circuit agreed that the evidence was insufficient on the assault count. It reversed that conviction and remanded the case for resentencing.


Hertular was originally arrested by local authorities in Belize, and charged with cocaine trafficking. Once released on bail, he initiated contact with a DEA agent, Vincent Williams, who was stationed in Belize, and expressed an interest in cooperating with American authorities. After two meetings in 2001, Williams told Hertular that the DEA would not use him as an informant.

In 2003, Williams was involved in a different drug investigation. Hertular appeared on the scene and met with the DEA’s informant. Hertular told the informant that the DEA was nearby and offered to “get rid of” the agents. After Hertular left, Williams followed him, and pulled him over, warning him to “be mindful of his associations.” In response, Hertular told Williams that he was “willing to kill a DEA agent” or US Embassy employee. Williams reported the threat to the Embassy, which implemented extra security measures. Hertular was not charged with this threat.

At the end of 2003, the DEA opened a formal investigation into Hertular’s drug activity. On December 25, 2003, Hertular called a second DEA agent, Raymond Kelly, on his cell phone and requested a meeting. Both Kelly and Williams attended the meeting, which took place in Kelly’s car. Hertular told them that he knew he was a target and was likely to be indicted soon. When the agents denied this, he played them a recording of a telephone conversation between Kelly and an informant regarding one of Hertular’s co-conspirators. He told the agents that DEA telephones had been tapped, that he had a source of information within the Embassy, and that he knew the identities of several DEA informants.

Later, Hertular became confrontational. He told the agents that it would be in their “best interest to back down from the investigation because he would have to protect himself.” When Kelly asked whether DEA agents in Belize were in jeopardy, Hertular said that they had better “protect” themselves and “watch [their] backs, because [his] organization would hire hit men from Colombia or Mexico to take [the agents] out.”

About two weeks later, Hertular was indicted in the Southern District of New York. In July of 2004 was extradited to the United States.

The Insufficient Evidence of Assault

The circuit held that the evidence was insufficient on the assault charge because 18 U.S.C. § 111 “requires some proof of the assailant’s present ability to inflict injury giving rise to an objectively reasonable apprehension of immediate harm.”

The statute makes it a crime to “forcibly” assault, resist, oppose, impede, intimidate or interfere with a federal officer engaged in the performance of official duties. The word “forcibly” limits the scope of the statute to “fewer acts than would fit the definition of the unmodified verbs alone.” Although the actual use of force is not necessary to satisfy the force element of § 111, the threat must “objectively inspire fear of pain, bodily harm, or death that is likely to be inflicted immediately.”

Here, the evidence was sufficient as to the first prong – inspiring fear – but not for the immediacy prong. An “implied threat to use force some time in the indefinite future” is insufficient to support a § 111 conviction. Here, that is all the government proved.

Hertular’s threats to the agents “did not indicate by word or deed that he was then armed or even that he was contemplating any present action against” them. Rather, he threatened them with “death at some unspecified future time.” Indeed, the threat would only come to fruition if the DEA continued its investigation of Hertular and Hertular’s organization hired hit men from other countries and brought them to Belize to carry out the threat. Since these conditions “suggest[ed] the passage of some time, a jury could not reasonably find that, when Hertular threatened the agents, he had the apparent present ability to take their lives.”

Obstruction of Justice

This same conduct was sufficient, however, to satisfy the obstruction of justice statute, 18 U.S.C. § 1512(b)(3), which makes it an offense to use threats or intimidation to hinder the communication of information relating to a federal crime to a law enforcement officer. “On this record, a reasonable factfinder could easily have concluded that when Hertular told the agents it was in their ‘best interest to back down’ from the investigation and warned them that ‘hit men from Colombia or Mexico’ would be hired to take [them] out,’ … his specific intent was to hinder or prevent not simply the filing of an indictment but any communication to or among federal law enforcement officials that could lead to his indictment.”

The Remedy

Generally, when the circuit overturns even one count of a multi-count conviction it remands the case for de novo sentencing proceedings. Here, although the reversal of a single misdemeanor count made little change to the “factual mosaic” of the case, the change to the “constellation of offenses” relevant to sentencing was sufficient to warrant resentencing. It is up to the district court to decide whether a conviction on three, rather than four, counts, affects its assessment of the statutory sentencing factors.

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