United States of America, Appellee-Cross-Appellant v. William Greer, A/K/A Thomas Williams Dodds, and Stephen Brent Hutchins, Defendants-Appellants-Cross-Appellees, 285 F.3d 158, 2d Cir. (2002)
United States of America, Appellee-Cross-Appellant v. William Greer, A/K/A Thomas Williams Dodds, and Stephen Brent Hutchins, Defendants-Appellants-Cross-Appellees, 285 F.3d 158, 2d Cir. (2002)
United States of America, Appellee-Cross-Appellant v. William Greer, A/K/A Thomas Williams Dodds, and Stephen Brent Hutchins, Defendants-Appellants-Cross-Appellees, 285 F.3d 158, 2d Cir. (2002)
3d 158
As explained below, we conclude that the District Court did not err by
excluding the parties and counsel from in camera meetings with prospective
jurors to discuss jury service hardship excuses and by not disclosing particular
remarks made by one prospective juror during such an in camera meeting. We
further hold that the District Court did not exceed its allowable discretion in
Next, we conclude that the District Court properly instructed the jury that a
foreign nation's consent to enforcement of United States law provided any time
before trial satisfies the jurisdictional element of the MDLEA. We also hold
that the fine imposed on Hutchins was not clearly erroneous and that the
District Court did not err in concluding that the defendants were only managers
or supervisors rather than leaders or organizers of criminal activity.
We find, however, that because the District Court's sentencing remarks are
ambiguous, we are unable to determine from the record whether the court was
required to state its reasons for the defendants' sentences under 18 U.S.C.
3553(c). We thus remand for clarification. We also hold that the District Court
erred by sentencing Greer to 120 months' imprisonment for violating the
currency reporting requirement of 31 U.S.C. 5316(a)(1)(A), by excluding
from relevant conduct a quantity of drugs that was part of the defendants'
offense, and by applying the wrong standard in evaluating statements under the
U.S.S.G.'s obstruction of justice provision. We thus remand for resentencing,
but note that the defendants must be resentenced in accord with Apprendi v.
New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and United
States v. Thomas, 274 F.3d 655 (2d Cir.2001).1
BACKGROUND
5
The evidence presented at trial, taken in the light most favorable to the
government, showed the following. The conspiracy was organized and headed
by Dutch and Canadian organizations, which shared in the profits and directed
the operations. Greer and Hutchins were hired to assist in the smuggling
ventures. From 1980 to 1993, Greer and Hutchins conspired to import and
export thousands of pounds of hashish and marijuana across the Vermont
Canada border. The defendants, and associates whom they oversaw, transported
In July 1996, a nine-count Superseding Indictment was filed against Greer and
Hutchins in the United States, and the defendants went to trial in the District of
Vermont in early 1997. At the close of trial, Greer and Hutchins were each
convicted of one count of conspiring to import and export a controlled
substance in violation of 21 U.S.C. 952, 953, 960, and 963, and one count of
conspiring to distribute and possess with intent to distribute hashish on board a
vessel subject to the jurisdiction of the United States, in violation of the
MDLEA, 46 U.S.C. app. 1903. Greer was also convicted of one count of
failing to report the international transportation of currency in violation of 31
U.S.C. 5316(a)(1)(A) and 5322(b). The jury acquitted the defendants of the
remaining counts, which are not relevant to this appeal. The District Court
sentenced Greer to 324 months' imprisonment and Hutchins to 276 months'
imprisonment. They timely filed notices of appeal.
DISCUSSION
I. The Jury Issues
8
Then, prior to announcing the case to the jury panel, the District Court
described the possible length of the trial and permitted those jurors with
extraordinary personal circumstances and potential scheduling conflicts to
address those issues individually in chambers. Neither the parties nor counsel
were permitted to participate or observe. According to the court, this was
standard procedure.
10
Defense counsel objected to their exclusion from the meetings. The court
responded, however, that the purpose of the meetings was solely to discuss
requests for excusal unrelated to the prospective jurors' knowledge of the case.
Defense counsel asked what the court would do if a prospective juror
mentioned something about the case. The court responded, "[T]hat is not to be
addressed at all. That person is to be sent back, and that will be addressed with
lawyers. I'm not going to say anything about this case." The court also noted
that a court reporter would be present, though the reporter would likely not
have a transcript of the meetings prepared before jury selection.
11
The court then met with approximately 30 jurors individually in chambers. The
following colloquy took place between the court and juror John Baker:
12
BAKER: Your Honor, good afternoon. When you extended the invitation to
meet with you privately, I was under the impression that it would have been
privately. What I wanted to discuss with you is critical.
13
14
15
16
17
18
19
20
21
THE COURT: Well, why don't you just tell me the general subject matter of
the
22
BAKER: Well, I can't ask you what trial, what case, and I understand that, but I
can tell you probably what the case is.
23
THE COURT: Well, this the purpose of this hearing, though, is just to get
into discussion about whether people have personal problems with the six
BAKER: No. I have no problem and I am not trying to get out of the trial.
25
26
27
THE COURT: Okay. Well, let's take this step by step. If you have got no
problems with the period of time, let's have you come back at one o'clock and
see if you are selected in the 35 jurors in the box there, and if you are, you will
know the nature of the case will be disclosed to you, and if you have any
particular issues to resolve at that particular point, then we will take that step by
step and you can bring that out.
28
29
30
31
32
After the in camera discussions, the court informed counsel that during the
interviews "nobody spoke about the case at all."
33
At voir dire, Baker was the first juror questioned. The court asked the jurors,
beginning with Baker, to name "the sources from which [they] have some
exposure to the facts of this case." The court explained that it wished to make
sure that if a juror had "been exposed to some knowledge about this case,
whether it's correct or incorrect, that that would not affect [his or her] judgment
in any way."
34
Baker responded that he had heard about the case through a newspaper called
the "Free Press." The court asked, "[I]s that strictly from the Free Press?";
Baker said yes. The court then asked Baker if he could nonetheless decide the
case based only on the evidence elicited in court; Baker said yes. After
questioning all the prospective jurors, the court again asked whether anyone
"has been exposed to any kind of publicity or in fact has talked about this case
with anyone else at all, who has not addressed that already[.]" No juror
responded.
35
Later during voir dire, Baker raised some concerns about possibly knowing
several potential witnesses. Baker also noted, in response to the court's question
about whether any prospective juror had prior experience with law
enforcement, that as part of his National Guard duty he had searched vehicles at
the Canadian border. Baker assured the court that he could remain impartial,
however, and he was not dismissed.
36
The court also asked the jurors: "Have you had any experience involving
yourself, any members of your family, or any close friend that relates to the use
or possession of illegal drugs or narcotics, within the past 10 years?" Juror
Baker did not respond. Upon returning to court the next day, however, Baker
said that he had recalled that his best friend had died as a result of drug and
alcohol abuse.
37
After some members of the panel had been dismissed, the court seated and
questioned new potential jurors. In the presence of juror Baker, one new
prospective juror informed the court that he had been asked by a co-worker
who knew one of the defendants to lend a "sympathetic ear" to the defendants.
The court asked the juror if this incident would make it uncomfortable for him
to sit on the jury and whether the co-worker imparted any facts of the case to
him. The juror answered no, and the court moved on. The juror was not
challenged for cause, but ultimately was not needed on the jury because all the
seats were filled. Baker was selected as a juror.
38
As part of its case during trial, the government attempted to establish a pattern
of drug distribution by Greer dating back to 1980. One witness who testified in
this regard, Michael Johnson, described situations in which Greer distributed
drugs to others. Johnson testified that Greer distributed drugs to a Robert Baker.
Robert Baker's name came up more than once during Johnson's testimony.
39
Although juror John Baker did not reveal his relationship to Robert Baker
during the trial, John Baker informed a news reporter after the trial that Robert
Baker was his brother. The court then held a full evidentiary hearing to address
this issue. At the post-trial hearing, John Baker testified that he was "surprised"
to hear his brother's name during trial. He did not bring the relationship to the
court's attention, however, because "it didn't have any impact" on him and
because he believed that the relationship would not prevent him from being
impartial. Baker testified that he mentioned his relationship with Robert Baker
to at least two jurors, though he did not tell any juror that his brother was a drug
user or purchaser. Baker also testified that he did not state during voir dire that
his brother was involved with drugs because he did not know of any such
involvement within the past ten years. The court then asked Baker if his
relationship with his brother impacted his ability to be fair and impartial; Baker
said no.
40
Baker acknowledged that his response on the jury questionnaire that no relative
had been accused of a crime was inaccurate because his brother Robert had
been convicted of a crime. Robert Baker had been incarcerated in 1969 and was
jailed at least once after that. John Baker said that he did not reveal this on the
jury questionnaire because he "didn't even give it a thought." According to
John, he and Robert did not regularly associate with one another. John
acknowledged, however, that he and Robert attended a family function during
the trial.
41
Baker then testified that when he met with the court in camera prior to jury
selection and said that he "probably" knew what the case was, he was referring
to the case against Greer. The "critical" information he wanted to disclose was
that prior to jury selection he had been contacted2 by an old acquaintance who
knew that Baker might serve as a juror for Greer's prosecution. The
acquaintance said that Greer had not sent him, but that he was a "close friend"
of Greer and wanted to make sure that there would be a "sympathetic ear" on
the jury. Baker interpreted this contact as a bribe attempt. He responded that the
contact was "inappropriate" and the offer "illegal." He then told the individual
that he "ought [to] kick his ass for even suggesting [a bribe], if that's what he
was suggesting."
42
According to Baker, he did not notify the court of the contact after the in
camera meeting because, again, he believed that it would not affect his ability
to be impartial. Moreover, after having seen that another juror was not
immediately dismissed upon revealing a similar outside contact, Baker figured
that "that solved [his] problem." The court asked Baker if the outside contact
had "any bearing on [his] ability to be fair and impartial[.]" Baker responded,
"Obviously not."
43
The court also interviewed the other jurors to determine whether they had been
exposed to extrinsic evidence and to assess their ability to be fair and impartial.
Five jurors recalled hearing John Baker mention his relationship to Robert
Baker, and five jurors recalled that he described his contact from an outside
source. One juror testified that John Baker told some jurors that Michael
Johnson's testimony "should be thrown out." Another juror testified that John
Baker announced before many jurors that his brother Robert was involved in
drug transactions with Greer. According to this juror's testimony, Baker told the
jurors that "Robert Baker was his brother, and that he was involved in drugs,
that he was in and out of jail most of his life, and that he had dealt with Bill
Greer." Baker, according to this juror, also told the jurors that the court was
aware of the situation and had advised him that it "would cross that bridge
when [it] came to it." The District Court, however, found this juror's testimony
"not ... persuasive."
44
None of the other jurors reported hearing John Baker's statements about
Robert's drug transactions with Greer, and six jurors said that they had not even
heard that John and Robert Baker were brothers. All twelve jurors affirmed that
nothing they heard had an impact on their ability to render a fair and impartial
verdict.
45
The District Court denied the defendants' motion for a new trial. The court
found that the defendants had failed to satisfy either prong of the two-part test
for a new trial based on juror misconduct set forth in McDonough Power
Equipment, Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663
(1984).
46
First, the court ruled that juror Baker did not fail to answer honestly a material
question at voir dire, because Baker's incorrect answers were not made for an
"illegitimate purpose" or with a "malicious design." The court found that juror
Baker's omissions or misstatements were either inadvertent or based on his
belief that he could be impartial. Addressing the second prong of the
McDonough test, the court found that correct answers to the voir dire questions
would not have supported a challenge for cause. It found that Baker's ability to
remain impartial was not affected by either the outside contact or his
relationship with his brother.
47
The court also found that a hypothetical, average juror would not have been
prejudiced by the extrinsic evidence brought in by Baker.
48
The defendants advance several challenges to the selection and conduct of the
jury. We address those challenges in turn.
49
50
The defendants assert that the District Court committed reversible error by
excluding the parties and counsel from in camera meetings with the venire
members relating to jury service hardship excuses. We disagree.
51
52
53
54
54
55
The defendants' reliance on United States v. Bordallo, 857 F.2d 519 (9th Cir.
1988), cert. denied, 493 U.S. 818, 110 S.Ct. 71, 107 L.Ed.2d 38 (1989), is
misplaced. In Bordallo, the Ninth Circuit concluded that either the defendant or
his counsel should have been present when the district court excused
prospective jurors. See id. at 523. In Bordallo, however, it was clear that "the
prospective jurors knew which specific case they would hear, and some were
excused due to factors related to [the defendant's] particular cause." Id. This, the
Ninth Circuit held, made the situation more analogous to voir dire than to mere
administrative impanelment. See id.
56
Here, the District Court questioned the prospective jurors prior to announcing
the case. As was made clear to the parties, the process employed by the court
was standard in Vermont. Accordingly, at least to the extent that the District
Court addressed routine administrative matters with the jurors, we fail to see
any error in its exclusion of the parties and counsel.
57
58
The defendants argue next that the District Court committed reversible error by
taking no action in response to juror Baker's in camera remarks. We disagree.
59
denied, 432 U.S. 909, 97 S.Ct. 2958, 53 L.Ed.2d 1083 (1977) ("There having
been no informed consent to [private communications between judge and one
juror during jury's deliberations], it was error for the court not to reveal the
substance of these communications to counsel for both sides.").
60
Juror Baker's in camera comments, however, could simply not have alerted the
court to the nature or significance of Baker's concerns. The court met with
approximately thirty jurors, and informed them all that the meetings were
solely for the purpose of discussing hardship excuses. When Baker tried to raise
other matters, the court told him correctly that he should address in open
court any matters unrelated to excusal on hardship grounds. Just as it had told
counsel it would do, once the court ascertained that Baker did not require an
excusal, it ended the meeting and encouraged him to speak at voir dire. Baker,
moreover, assured the court that he was satisfied with that solution.
61
Juror Baker's statements at voir dire, in turn, likely satisfied the court that
Baker's concerns had been aired. Baker mentioned his familiarity with the case
from the newspaper; his experience in the National Guard; the fact that his best
friend had died from drug and alcohol abuse; and the fact that he knew several
witnesses. These statements appear to have alleviated any concerns the court
may have had about Baker's in camera comments. Nothing would have led a
trial judge reasonably to suspect anything other than that Baker had disclosed
what was on his mind.
62
Our decision is not inconsistent with Taylor, in which we held that it was error
for the district court not to reveal the substance of its private communications
with a juror. See 562 F.2d at 1366. In Taylor, unlike here, the communications
occurred during the jury's deliberations, a stage of the trial in which private
communications with a juror clearly violate the right to be present. Id. at 1365;
see Smalls v. Batista, 191 F.3d 272, 278 (2d Cir.1999) ("It is well recognized
that jury deliberations constitute a critical stage of a criminal trial." (internal
quotation marks omitted)). We are unwilling to extend Taylor to the situation at
bar, in which communications between a judge and a juror occurred during the
administrative impanelment process.
63
at the time of his ruling, without the benefit of hindsight."), cert. denied, 479
U.S. 989, 107 S.Ct. 584, 93 L.Ed.2d 587 (1986). Accordingly, we conclude that
the District Court did not exceed its allowable discretion, given what it knew at
the time, in deciding not to convey to the parties and counsel what Baker had
mentioned.
C. Denial of a New Trial
64
We review the denial of a motion for a new trial for abuse of discretion. See
Rivas v. Brattesani, 94 F.3d 802, 807 (2d Cir.1996) (per curiam). "It is, of
course, the rule that a motion for a new trial must be granted if the trial was not
fair to the moving party." Id. (citing Montgomery Ward & Co. v. Duncan, 311
U.S. 243, 251, 61 S.Ct. 189, 85 L.Ed. 147 (1940)). "One touchstone of a fair
trial is an impartial trier of fact `a jury capable and willing to decide the case
solely on the evidence before it.'" McDonough Power Equip., Inc. v.
Greenwood, 464 U.S. 548, 554, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984) (quoting
Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982)).
In McDonough, 464 U.S. at 556, 104 S.Ct. 845, the Supreme Court held that a
party moving for a new trial based on juror nondisclosure or misstatements
must satisfy a two-part test. First, the party must show that "a juror failed to
answer honestly a material question on voir dire." Id. Second, the party must
show that "a correct response would have provided a valid basis for a challenge
for cause." Id. Both prongs must be met before a new trial may be obtained. See
id.
66
In its Opinion and Order denying a new trial, the District Court focused on four
instances of nondisclosure by juror Baker: his questionnaire response that no
one in his family had been convicted of a crime; his failure at voir dire to
disclose his outside contact with a third party; his failure to disclose his
brother's drug use; and his failure to inform the court that Robert Baker is his
brother. In their briefs to this Court, however, the defendants focus exclusively
on Baker's failure to disclose his outside contact. Accordingly, we decline to
address the other instances of nondisclosure. See United States v. Zichettello,
208 F.3d 72, 121 (2d Cir.2000) ("Ordinarily, failure to include an argument in
the appellate brief waives the argument on appeal."), cert. denied, 531 U.S.
1143, 121 S.Ct. 1077, 148 L.Ed.2d 954 (2001); Norton v. Sam's Club, 145 F.3d
114, 117 (2d Cir.) ("Issues not sufficiently argued in the briefs are considered
waived and normally will not be addressed on appeal."), cert. denied, 525 U.S.
1001, 119 S.Ct. 511, 142 L.Ed.2d 424 (1998).3
67
68
The District Court found and we agree that none of the grounds for a
successful challenge for cause existed here. Challenges for cause are generally
based on actual bias, implied bias, or inferable bias. See United States v.
Torres, 128 F.3d 38, 43 (2d Cir.1997), cert. denied, 523 U.S. 1065, 118 S.Ct.
1399, 140 L.Ed.2d 657 (1998). Actual bias is bias in fact. See id. Implied bias,
by contrast, is bias presumed as a matter of law. See id. at 45. Finally, inferred
bias is available when actual or implied bias does not apply. See id. at 46-47.
"Bias may be inferred when a juror discloses a fact that bespeaks a risk of
partiality sufficiently significant to warrant granting the trial judge discretion to
excuse the juror for cause, but not so great as to make mandatory a presumption
of bias." Id. at 47.
69
demonstrated that all the jurors, including Baker, fairly considered the
evidence. The court found that Baker learned "nothing of substance" about the
case from his conversation with a third party. 4 We will not overturn such
findings absent clear error, and we see no such error here. See Torres, 128 F.3d
at 44 ("[A] finding of actual bias is based upon determinations of demeanor and
credibility that are peculiarly within a trial judge's province." (internal
quotation marks omitted)); id. ("Given the special capacity of the trial judge to
evaluate actual bias on the part of prospective jurors, that judge's determination
in this regard is accorded great deference, since an appellate court [cannot]
easily second-guess the conclusions of the decisionmaker who heard and
observed the witnesses." (internal quotation marks omitted)).
70
71
72
Finally, a finding of inferred bias is, by definition, within the discretion of the
trial court. As with actual bias, "the judge's determination [of inferred bias]
must be grounded in facts developed at voir dire." Id. at 47. Thus, a district
court's evaluation of the juror's impartiality is accorded deference. Here, the
District Court refused to infer bias based on its assessment of the evidence.
Because we see no error in the court's findings, we decline to overturn that
ruling.
73
In short, we cannot say that the District Court erred in finding no bias that
would have supported a challenge for cause. See Ploof, 464 F.2d at 118-19 n. 4
("There are few aspects of a jury trial where we would be less inclined to
disturb a trial judge's exercise of discretion, absent clear abuse, than in ruling on
challenges for cause in the empanelling of a jury."). Thus, we affirm the
District Court's denial of defendants' motion for a new trial based on juror
misconduct.
74
Our holding does not conflict with this Court's decision in United States v.
Colombo, 869 F.2d 149 (2d Cir.1989) ("Colombo I"). In Colombo I, we held
that deliberate lies by a juror lies which reflected partiality on the juror's part
satisfied the McDonough test and warranted a new trial. Colombo I did not
eliminate the second prong of the McDonough test. It simply held that a lie
which simultaneously demonstrates both dishonesty and partiality on the part of
the juror will satisfy both prongs of the test. That is, in Colombo I, it was not
simply that the lies in question were deliberate, but that the deliberateness of
the particular lies evidenced partiality. See id. at 151 (noting that juror's motive
in lying was to prevent defense counsel from acting on information the juror
believed might lead to her dismissal from the case). This case, however, can be
distinguished from Colombo I, for the reasons articulated in United States v.
Langford, 990 F.2d 65, 68-70 (2d Cir.1993). In Langford, we held that
Colombo I did not establish a per se rule requiring a new trial whenever an
intentionally false answer is discovered. Rather, we emphasized that
McDonough establishes a multi-part test in which a juror's dishonesty is among
the "factors to be considered" in the ultimate determination of bias and that an
analysis of bias is required even if the juror's erroneous response was
deliberate. Here, as in Langford, we have made the ultimate determination of
whether the juror was impartial and have found no bias that would have
supported a challenge for cause under the second prong of McDonough.
Accordingly, the present case, like Langford, is significantly different from
Colombo I with respect to the determination of the juror's bias.
The defendants also claim that the extrinsic evidence brought in by juror Baker,
i.e., the information regarding his outside contact and his relationship to Robert
77
In the evidentiary hearing in this case, the District Court asked jurors whether
the extra-record information impacted their ability to be fair and impartial.
Because this was a post-verdict hearing, that line of questioning was improper.
See Bibbins, 21 F.3d at 17 (under Fed. R.Evid. 606(b), "[e]ven when a juror
attests to receiving information outside the record, the juror may not go on to
testify about the effect of that information on the juror's mental processes or the
jury's deliberations"); United States v. Ianniello, 866 F.2d 540, 544 (2d
Cir.1989) ("Whether the jury relied on improper evidence ... is not a question to
be asked jurors....").
78
Nonetheless, the District Court also concluded that the extrinsic information
would not have affected a typical juror. After making an "independent
determination" as to this issue, Bibbins, 21 F.3d at 17, we agree. The outside
contact with John Baker presented no information that could have been
improperly used in deliberations. No specific details about the case were
revealed, and there was no indication that the defendants arranged the call.
Similarly, Robert Baker's role in the trial was minimal, and his name arose
during testimony which was provided to prove two counts on which the
defendants were ultimately acquitted. See Calbas, 821 F.2d at 895 (finding no
prejudice in part because the extrinsic information "bore most directly on the
substantive count, upon which [defendant] was acquitted"). Moreover, as the
District Court found, the jury's "complex verdict resulting in convictions on
some counts and acquittals on others" demonstrated its fairness. See United
States v. Aiello, 771 F.2d 621, 631 (2d Cir.1985) (noting that jury's impartiality
was demonstrated by the nature of its verdict and careful discrimination in
weighing the evidence).
79
Thus, we agree that a "hypothetical average juror" would not have been
influenced by the extrinsic information in this case. Accordingly, the
defendants' motion for a new trial based on jury prejudice resulting from
extraneous information was properly denied.
II. The MDLEA Instruction
80
Count Four of the Indictment charged the defendants with conspiring to violate
the MDLEA between 1989 and 1991 based on their attempts to offload hashish
into Canada from ships in Canadian waters. The evidence produced by the
government at trial demonstrated that in 1989 the defendants orchestrated and
participated in the offload of many tons of hashish from a vessel in the St.
Lawrence River. In 1990, the defendants planned another such offload, but the
shipment did not arrive. In 1991, the defendants planned to offload a 60 ton
shipment of hashish from two vessels in the Gulf of the St. Lawrence. The
effort failed, and barrels of hashish were subsequently discovered floating in
the St. Lawrence River. The defendants were arrested after this failed offload.
81
The MDLEA makes it unlawful for "any person on board a vessel of the United
States, or on board a vessel subject to the jurisdiction of the United States ... to
knowingly or intentionally ... distribute... a controlled substance." 46 U.S.C.
app. 1903(a). The Act states that "a `vessel subject to the jurisdiction of the
United States' includes ... a vessel located in the territorial waters of another
nation, where the nation consents to the enforcement of United States law by
the United States." Id. 1903(c)(1)(E). "Consent ... may be proved by the
certification of the Secretary of State or the Secretary's designee." Id. 1903(c)
(1)(E).6
82
In this case, the defendants were charged with a conspiracy that ended in late
July 1991. In July 1996 the defendants were indicted for violating the MDLEA.
It is undisputed that the government did not obtain consent from Canada to
enforce United States law until after the return of the Superseding Indictment in
July 1996.
83
84
85
86
87
Moreover, we are persuaded by the fact that several of our sister circuits have
found that consent under the MDLEA can relate back to activity that occurred
before consent. See, e.g., Devila, 216 F.3d at 1017, aff'g United States v.
Preciado, No. 96-0534 (S.D.Fla. Jan. 13, 1998) (order denying motion for new
trial) ("[W]hile the individuals may challenge jurisdiction over a vessel on the
basis that the flag nation failed to consent before trial, they may not do so on
the basis that the flag nation's consent was obtained after the vessel was
boarded."); United States v. Cardales, 168 F.3d 548, 552 (1st Cir.) (finding
jurisdictional requirement of MDLEA satisfied though consent was provided
after boarding of ship by Coast Guard), cert. denied, 528 U.S. 838, 120 S.Ct.
101, 145 L.Ed.2d 86 (1999); United States v. Juda, 46 F.3d 961, 966 (9th Cir.)
("[W]hen MDLEA jurisdiction is premised on consent of the flag nation, such
consent relates back to activity that occurred prior to consent."), cert. denied,
515 U.S. 1169, 115 S.Ct. 2632, 132 L.Ed.2d 872 (1995); United States v. Khan,
35 F.3d 426, 431 (9th Cir.1994) ("[T]he timing of ... consent is irrelevant."). Cf.
United States v. Aikins, 923 F.2d 650, 655 (9th Cir.1990) ("The statute is not
applied to the defendants ex post facto; although Panama gave its consent after
they had set to sea, they took the risk of such consent being given."); United
States v. Reeh, 780 F.2d 1541, 1547 (11th Cir.1986) (noting that consent under
predecessor statute, 21 U.S.C. 955a, is valid if given "before th[e] case came
to trial").
88
89
Although consent here was given five years after the fact as opposed to
weeks or months there is no clear rationale for drawing the line at any point
prior to the beginning of trial. If consent after the fact is permissible, then it is
as logical to allow it years after securing of the vessel as it is days after.
90
91
91
92
Because Greer's criminal history category was II, his U.S.S.G. range was 292 to
365 months; Hutchins's criminal history category was I, and his U.S.S.G. range
was therefore 262 to 327 months. The District Court sentenced Greer to 324
months' and Hutchins to 276 months' imprisonment. Both defendants were also
fined $500,000.
A. The Defendants' Sentencing Claims
Greer and Hutchins request a remand for resentencing because the District
Court failed to state its reasons for imposing sentences of 324 months' and 276
months' imprisonment, respectively.
94
Whether we may review a district court's failure to state its reasons for
imposing a particular sentence depends on whether the court imposed a
sentence within an applicable Sentencing Guideline range that exceeds 24
months or whether it departed downward and imposed a sentence outside the
applicable range. Title 18, section 3553(c)(1) of the United States Code
requires a district court to explain its reasons for imposing a sentence at a
particular point within a Guidelines range if the range exceeds 24 months. See
18 U.S.C. 3553(c)(1); see also United States v. Prince, 110 F.3d 921, 927 (2d
Cir.), cert. denied, 522 U.S. 872, 118 S.Ct. 188, 139 L.Ed.2d 127 (1997). Title
18, section 3553(c)(2) similarly requires a district court to state its reasons for
imposing a sentence outside the range established by the Guidelines that is,
for departing.7 See 18 U.S.C. 3553(c)(2). However, in United States v.
Hargrett, 156 F.3d 447, 450 (2d Cir.), cert. denied, 525 U.S. 1048, 119 S.Ct.
607, 142 L.Ed.2d 547 (1998), we held that a court's failure to explain the extent
of a downward departure even when the departure is to a sentencing range
exceeding 24 months, see id. at 450 n. 1 is unreviewable on appeal by a
defendant. We noted that 18 U.S.C. 3742(a) does not allow courts of appeals
to review a district court's refusal to grant a downward departure or the extent
of any downward departure that is granted. See id. As such, a rule that allows
review of the failure to explain the extent of a departure would be "anomalous."
Id. The end result is that we may only review the District Court's failure to state
its reasons for the defendants' sentences if those sentences were not the result of
downward departures.
95
96
2. Hutchins's Fine
97
Hutchins argues that his $500,000 fine was improper for two reasons: first,
because he did not receive adequate notice that material in the pre-sentence
report ("PSR") would be taken into account in determining the fine; and second,
because the evidence at sentencing did not support the finding that Hutchins
had the ability to pay the fine.
98
99
Here, the PSR was furnished to Hutchins and Hutchins was provided an
opportunity to state his objections to the report's contents. The PSR specifically
discussed the profits earned by Hutchins. Thus, Hutchins was provided
adequate notice under Rule 32.
100 Second, the District Court considered the evidence and found that while the
defendants were on bail and during trial, they made approximately $1.7 million
in profits from continued drug distribution. These findings are reviewable only
for clear error. See United States v. Sellers, 42 F.3d 116, 118, 120 (2d
Cir.1994), cert. denied, 516 U.S. 826, 116 S.Ct. 93, 133 L.Ed.2d 49 (1995). We
find no such error and, given those findings, we conclude that a $500,000 fine
is reasonable.9
3. Sentence for Currency Reporting Violation
101 In its reply brief to the defendants' petition for rehearing, the Government notes
that Greer was incorrectly sentenced to 120 months' imprisonment, to run
concurrently with his other convictions, for his conviction of violating the
currency reporting requirements of 31 U.S.C. 5316(a)(1)(A). The maximum
penalty for violating this provision is 60 months and should be corrected on
remand. See 31 U.S.C. 5322(a).
consistent with United States v. Azeem, 946 F.2d 13 (2d Cir.1991), in which we
held that foreign crimes, that is, crimes not committed against the United
States, should not be considered relevant conduct under 1B1.3. In Azeem, the
district court included as part of the defendant's relevant conduct drugs
transported from Pakistan to Cairo in a separate transaction. See id. at 16.
Because that transaction "was not a crime against the United States," we held
that the drugs should not have counted toward the defendant's base offense
level. Id. By contrast, the crimes in this case are not foreign crimes; the
MDLEA is a United States criminal statute that specifically covers conduct
outside the United States.10 See United States v. Juda, 46 F.3d 961, 966 (9th
Cir.) ("Nothing in the language of the [MDLEA] limits its application to
defendants who possess drugs intended for distribution in the United States."),
cert. denied, 515 U.S. 1169, 115 S.Ct. 2632, 132 L.Ed.2d 872 (1995).
106 The defendants argue that even if the District Court erred in calculating their
relevant conduct, no remand is necessary because the court made an
"alternative ruling granting a downward departure" based on the foreign nature
of the drugs and the Canadian prosecution. While in some cases it may be
within a district court's discretion to depart downward due to successive
prosecutions, see Koon v. United States, 518 U.S. 81, 112, 116 S.Ct. 2035, 135
L.Ed.2d 392 (1996), we need not decide whether such a departure was
appropriate here because our reading of the record leads us to conclude that the
District Court did not depart downward. Rather, the court decided that the
"foreign" drugs were not part of the defendants' relevant conduct under 1B1.3
of the U.S.S.G.
107 At the sentencing hearing, the court stated:
108 I didn't want to double penalize Mr. Greer. Theoretically he could have been
sentenced under [a base offense level of] 38 and essentially say that he should
get credit [for time already served]. But I didn't think that was honest ... with
the intention and purpose of the statute, and honest in regard to . . . the purpose
of the guidelines. This is to penalize American conduct, and if there was a way
to delineate American conduct, that's the way it's done. And that's the way I did
it, and that's why [the base offense level] ended up at 36.
109 The court then indicated several times that because it considered the
defendants' culpability in its determination of relevant conduct, a downward
departure for successive prosecutions was unwarranted. Moreover, in its
"Order: Guidelines Application Issues," the court reiterated that "the fact that
these defendants have been prosecuted, convicted and incarcerated for these
drugs, which for the most part never reached United States soil, is crucial to
this Court's determination of the quantities of drugs for which they should be
sentenced here." The court stated that "foreign drugs in all fairness should not
be added to the total drug quantity."
110 It is thus clear that, rather than departing downward, the court factored into
relevant conduct under 1B1.3 the fact that the drugs were destined for a
foreign nation and were the subject of foreign prosecution. Because this is a
misapplication of the Guidelines, we vacate the sentences and remand for
resentencing. The resentencing of the defendants must be conducted in accord
with the holding of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000) and United States v. Thomas, 274 F.3d 655 (2d Cir.2001).
See United States v. Grimes, 142 F.3d 1342, 1351 (11th Cir. 1998) ("The
general rule is that a defendant should be sentenced under the law in effect at
the time of sentencing."), cert. denied, 525 U.S. 1088, 119 S.Ct. 840, 142
L.Ed.2d 695 (1999); cf. United States v. Kirkham, 195 F.3d 126, 132 n. 5 (2d
Cir. 1999) ("[O]n remand [defendant's] sentence is governed by the version of
the Guidelines in effect at the time of resentencing."). Apprendi held that "
[o]ther than the fact of a prior conviction, any fact that increases the penalty for
a crime beyond the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S.Ct. 2348. Title
21 U.S.C. 960, the statute governing the defendants' sentences for Counts 1
and 4, provides differing penalties according to the quantity of various drugs
trafficked by the defendant. Following Thomas, it is clear that drug quantity is
an element of a 960 offense "that must be charged in the indictment and
submitted to the jury for its finding beyond a reasonable doubt." 274 F.3d at
673; see also United States v. Chavez, 267 F.3d 76, 78-79 (2001) (per curiam)
(applying an Apprendi analysis to a sentence entered under 960); United
States v. Dennis, 271 F.3d 71, 74 (2d Cir.2001) (per curiam) (same).
111 In this case, although quantity was alleged in the defendants' indictments, the
District Court instructed the jury that it need not consider the quantity of drugs
trafficked by the defendants. Therefore, because we are remanding this case for
resentencing so that the District Court may consider "foreign drugs," when
recalculating the sentences the District Court must do so in accord with the
principles of Apprendi. 11 Thus, although the District Court may find, by a
preponderance of the evidence standard, the quantity of drugs trafficked by the
defendants and use this quantity in its calculations under the Sentencing
Guidelines, the resulting sentence cannot exceed the statutory maximum. See
United States v. Garcia, 240 F.3d 180, 183 (2d Cir.2001) (holding that
Apprendi has not affected the district court's authority to determine facts for
sentencing at or below the statutory maximum). In this case, the statutory
maximum for Counts 1 and 4 is set by 21 U.S.C. 960(b)(4), which is
Notes:
1
After our initial disposition in this case,see United States v. Greer, 223 F.3d 41
(2d Cir. 2000), the defendants' moved for rehearing. In a separate order issued
with this amended opinion we grant the defendants' motion for rehearing and
deny oral argument.
It is unclear whether the contact was telephonic or in person. Baker first stated
that he was "contacted," then later commented, "We kind of met, like secretly.
He didn't want to meet in a public place."
It is true that in his brief Greer mentions Baker's omissions about his
relationship with his brother in discussing prong one of theMcDonough test.
This is only in an attempt to bolster his claim that Baker lacked credibility,
however, and it is not until his reply brief that Greer even suggests that Baker's
omissions regarding his brother would have provided a valid basis for a
challenge for cause. Thus, we find that the defendants waived the argument that
Baker's omissions regarding his brother satisfy the second prong of
McDonough. See Thomas v. Roach, 165 F.3d 137, 146 (2d Cir.1999) (argument
raised for first time in reply brief is waived). Because a party moving for a new
trial based on juror misconduct must satisfy both prongs of McDonough, we
find it unnecessary to reach the issue of Baker's omissions about his
relationship with his brother.
4
The District Court's determination that it would not have excused Baker for
cause as a result of his contact with a third party is supported by the fact that no
challenge for cause was made let alone sustained with regard to the other
venire person who was asked by a third party to lend a "sympathetic ear."
Hutchins's fine range under the Guidelines was $25,000 to $4 million plus the
The District Court itself acknowledged thatAzeem "does not control the
outcome here" because the "offloads in this case, unlike the situation in Azeem,
did not involve a distinctly foreign crime."
11