United States v. Stevenson
2016 U.S. App. LEXIS 15083
| 2d Cir. | 2016Background
- Eric Stevenson, former New York State Assembly member (Bronx, Dist. 79), was investigated for assisting businessmen in opening adult daycare centers; FBI used confidential informants and surveillance.
- Indicted and tried in SDNY; jury convicted Stevenson of honest-services wire fraud conspiracy, federal-programs bribery/Travel Act conspiracy, accepting bribes (§ 666), and extortion under color of official right (Hobbs Act).
- Government presented evidence Stevenson accepted three bribes totaling $22,000 (2012–2013) in exchange for actions including proposing favorable legislation.
- District court sentenced Stevenson to 36 months imprisonment and ordered criminal forfeiture of $22,000; when that amount could not be satisfied, the court designated substitute assets (Stevenson’s NY State retirement contributions) under 21 U.S.C. § 853(p).
- On appeal Stevenson challenged: (1) two sentencing enhancements as impermissibly overlapping (public official/elected public official); (2) the district court’s criminal forfeiture without a jury finding beyond a reasonable doubt; and (3) designation of pension contributions as substitute assets protected by the New York Constitution.
Issues
| Issue | Stevenson’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Sentencing enhancements: double counting of §2C1.1(a)(1) (public official) and §2C1.1(b)(3) (elected official) | Both enhancements punish the same harm and cannot be stacked | Enhancements address distinct harms: general public-trust betrayal vs. greater harm from an elected official’s betrayal | No error — enhancements may be combined; no impermissible double counting affirmed |
| Sentencing disparity under 18 U.S.C. §3553(a)(6) | Sentence was unreasonably disparate compared to co-defendants (the businessmen) | District court properly considered co-defendants but explained differences (guilty pleas, acceptance of responsibility, and elected-official status) | No procedural error; district court acted within §3553(a) discretion |
| Criminal forfeiture amount determination and Sixth Amendment jury right (Libretti issue) | Forfeiture amount must be found by a jury beyond a reasonable doubt under Apprendi and its progeny | Libretti remains controlling: no Sixth Amendment jury right for criminal forfeiture; later cases do not overrule Libretti | Libretti controls; court may determine forfeiture by judge (preponderance standard); forfeiture affirmed |
| Substitute asset designation (pension contributions) vs. NY Constitution protection | NY Constitution (Art. V, §7) protects pension benefits from being diminished or impaired; pension contributions cannot be forfeited | Federal forfeiture statutes (21 U.S.C. §853 and §853(p)) preempt contrary state constitutional provisions under Supremacy Clause | Pension contributions may be designated as substitute assets up to forfeiture amount; state constitutional protection preempted and designation affirmed |
Key Cases Cited
- Libretti v. United States, 516 U.S. 29 (Sup. Ct.) (criminal forfeiture does not require jury finding beyond a reasonable doubt)
- Apprendi v. New Jersey, 530 U.S. 466 (Sup. Ct.) (facts increasing penalty beyond statutory maximum must be found by a jury)
- Southern Union Co. v. United States, 567 U.S. 343 (Sup. Ct.) (Apprendi principle extends to criminal fines calculated from jury-found facts)
- Alleyne v. United States, 570 U.S. 99 (Sup. Ct.) (facts increasing mandatory minimums are elements for jury finding)
- United States v. Fruchter, 411 F.3d 377 (2d Cir.) (Libretti remains binding despite later cases)
- United States v. Volpe, 224 F.3d 72 (2d Cir.) (double-counting analysis: multiple adjustments permissible if they address different harms)
- United States v. White, 663 F.3d 1207 (11th Cir.) (distinguishing elected public officials for sentencing enhancement purposes)
- United States v. Barraza, 655 F.3d 375 (5th Cir.) (no double counting applying both §2C1.1(a)(1) and (b)(3))
- United States v. Gaskin, 364 F.3d 438 (2d Cir.) (forfeiture amount need only be proved by a preponderance; district court findings reviewed for clear error)
- United States v. Marcus, 560 U.S. 258 (Sup. Ct.) (plain-error standard articulated for preserved/unpreserved claims)