981 F.3d 187
2d Cir.2020Background
- Rasheed was convicted after a jury trial in the W.D.N.Y. for escape in violation of 18 U.S.C. §§ 751(a) and 4082(a) for failing to report to a Bureau of Prisons–approved residential reentry center (VOA) in Rochester after an unaccompanied furlough from USP Lee.
- His furlough agreement specified travel itinerary and required reporting to VOA by noon on March 2, 2016; he never reported, a warrant issued, and months later he was arrested in Pennsylvania for unrelated crimes.
- Indicted in W.D.N.Y., Rasheed moved for acquittal at close of the Government’s case, arguing venue was improper because he was never physically in the Western District of New York. The district court denied the motion; the jury convicted.
- During jury selection the district judge twice told jurors Rasheed was in custody and then immediately instructed that custody should not influence their verdict; Rasheed sought a mistrial, which was denied.
- At sentencing the court imposed 60 months (statutory maximum) consecutive to other sentences and three years supervised release that included two special conditions (treatment with a cost-contribution clause) and a standard risk-notification condition later modified by the W.D.N.Y. standing order following Boles.
Issues
| Issue | Rasheed's Argument | United States' Argument | Held |
|---|---|---|---|
| Venue (proper district for escape) | Venue improper in W.D.N.Y. because Rasheed was never physically in that district; Government must prove offense occurred there | The situs of the crime is where the act was required to be performed; VOA RRC was the limits of confinement so venue is proper in W.D.N.Y. | Venue proper in W.D.N.Y.; failure to report to designated facility fixes situs at receiving district. |
| District judge statements re: custody / mistrial | Judge’s comments that Rasheed was in custody prejudiced jury and denied fair trial; mistrial required | Comments were meant to prevent speculation; judge immediately instructed jurors that custody is not evidence of guilt; curative instruction agreed by parties | No abuse of discretion in denying mistrial: prior stipulation of custody, immediate curative instruction, and jurors are presumed to follow instructions. |
| Sentencing—Guidelines treatment of PA convictions | PA convictions while at large should be treated as relevant conduct under §1B1.3, not as prior sentences under §4A1.1, affecting criminal history/category | District court properly treated them as prior sentences; even if error, sentence would not have changed because court imposed statutory maximum after variance | Plain-error review fails: even if error, Rasheed cannot show reasonable probability outcome would differ; above-Guidelines max sentence would remain. |
| Supervised release conditions (cost contribution & risk-notification) | Cost-contribution imposed without finding ability to pay; risk-notification unlawfully delegates judicial power to probation officer | Cost requirement can be read as contingent on ability to pay; W.D.N.Y. standing order modifies risk condition to require court consultation before probation action | Cost-contribution construed as contingent on ability to pay; standing-order modification resolves delegation concern and challenge is unripe unless implemented in future. |
Key Cases Cited
- Overaker v. United States, 766 F.2d 1326 (9th Cir. 1985) (venue proper in receiving district where defendant was ordered to report after unescorted transfer)
- Wray v. United States, 608 F.2d 722 (8th Cir. 1979) (venue proper where required reporting should have been done)
- Wilson v. Shores (United States v. Wilson), 262 F.3d 305 (4th Cir. 2001) (venue in transferee district where defendant failed to notify or return after erroneous release)
- Johnston v. United States, 351 U.S. 215 (1956) (place fixed for performance of duty fixes situs of failure-to-act offenses)
- Lange v. United States, 834 F.3d 58 (2d Cir. 2016) (venue analysis looks to nature of crime and location of acts constituting it)
- Tzolov v. United States, 642 F.3d 314 (2d Cir. 2011) (venue reviewed de novo when facts undisputed)
- Rowe v. United States, 414 F.3d 271 (2d Cir. 2005) (venue in federal criminal cases governed by constitutional and statutory rules)
- Rutigliano v. United States, 790 F.3d 389 (2d Cir. 2015) (substantial-contacts test for venue applies only when defendant shows hardship or prejudice)
- Boles v. United States, 914 F.3d 95 (2d Cir. 2019) (risk-notification condition impermissibly delegated unfettered discretion to probation officer)
- Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) (to show plain error affecting substantial rights, defendant must show reasonable probability outcome would differ)
- Cramer v. United States, 777 F.3d 597 (2d Cir. 2015) (court will not remand where record shows district court would have imposed same sentence)
- Spallone v. United States, 399 F.3d 415 (2d Cir. 2005) (court may interpret ambiguous judgments using the sentencing record)
- Richardson v. Marsh, 481 U.S. 200 (1987) (presumption that jurors follow instructions)
- Perez v. United States, 144 F.3d 204 (2d Cir. 1998) (district court may offer curative instructions; parties may decline)
- Yannai v. United States, 791 F.3d 226 (2d Cir. 2015) (standard of review for denial of mistrial is abuse of discretion)