*1 a member either these conspiracies.” tence imposed on the narcotics conspiracy (Tr. added).) (emphases count.
The court’s later stated, instructions with respect to the bribery conspiracy, CONCLUSION that in order to convict Ceballos on that We have considered all of the govern- count jury must beyond find a reason- ment’s arguments in support of the brib- able doubt that he “willfully became a ery conspiracy conviction and have found member of conspiracy (Tr. charged” them to be without merit. So much of the 627), and the instructions as a ap- whole judgment as reflects that conviction is re- pear to be correct. Nonetheless, the evi- versed. The matter is remanded entry dence that Ceballos join intended to of an amended judgment dismissing that bribery conspiracy was legally insufficient, count and for consideration the district jury’s finding guilt in the ab- court of whether resentencing sence of evidence of that may intent maining count is warranted. explainable by confusion from govern- emphasis ment’s that the two conspirаcies
merged into one and from the court’s pre-
liminary reference to the possibility that
the conspiracies were “intertwined” and
that it up to the jury to determine
whether Ceballos join intended to “either.”
(Tr. 595.) Shirley CRITCHLOW, M.
For the reasons above, discussed we Plaintiff-Appellant, conclude that the evidence was insufficient permit juror rational to infer that joined Ceballos the bribery conspiracy. FIRST UNUM LIFE INSURANCE CO. Accordingly, his conviction that offense AMERICA, OF Defendant- must be reversed that count of the Appellee. indictment dismissed. Docket No. 02-7585.
In imposing sentence on Ceballos for his narcotics conspiracy offense, the district United States Court of Appeals, court sentenced Ceballos to a prison term Second Circuit. in the middle the range prescribed Argued Jan. 2003. the Sentencing Guidelines. Although the bribery conspiracy conviction had not in- Aug. Decided 2003. creased Ceballos’s Guidelines range, it is As Aug. Amended possible that the district court’s conclusion that Ceballos should not be sentenced at
the bottom of that range may have been
influenced the fact that Ceballos was
also convicted of bribery conspiracy. We
thus remand not only for entry of an judgment
amended dismissing the bribery
conspiracy count, but also for the district
court to consider whether dismissal of that
count warrants reconsideration of the sen- *2 Rochester, Calabrese, J.
Christopher Appellant. NY for Stecker, Lytle, Hitch- Phillips, K. Paul Buffalo, Huber, NY for cock, Blaine & Appellee. GRAAFEILAND, VAN
Before: PARKER, Circuit JR. and B.D. KEARSE Judges. separate in a KEARSE dissents
Judge opinion. GRAAFEILAND, Circuit Senior
VAN Judge. Critchlow, David February
On Shirley year old son thirty-two result of as the died by a self- strangulation i.e. asphyxiation, neck. noose around imposed caused that was neck in David’s groove in a clearly visible strangulation is po- taken photograph postmortem it- speaks lice, depiction tragic self. Blecker, the Dr. Ben
In the report in connection assigned prosecutor Man- and Statistical Diagnostic Edition, Disorders, 3rd Mental ual of as follows: quoted diag- psychiatric current In DSM3R (autoerotic manual, asphyxiophilic nostic particu- aas is classified asphyxiation) manner- of sexual dangerous form larly by de- is induced in which arousal ism in one or thе brain priving strangulation, hanging, ways: several mouth covering the compression, chest bag or mask. plastic nose with The danger inherent in this unfortunate to constrict his windpipe, but did not in- practice is demonstrated the fact that tend to lose consciousness and die from approximately 2000 deaths per year have asphyxiation, he did not die from “inten- been calculated result therefrom. See tionally injuries.” Id. at 323. Lonergan v. Reliance Std. court found that decedent’s intentional *3 (D. No. CV-96-11832-PBS May Mass act of constricting his windрipe —with 1997).1 purpose of depriving his brain of oxygen— employer
David’s carried a indeed group caused acci- him “it injury: led directly dental death and dismemberment to his insur- death.” Id. The court explained, “by ance policy with First UNUM Life constricting Insur- the flow oxygen of to his ance Company which covered brain, David and to the point where loss of conscious- named Shirley as beneficiary any of award ness and death were certain to if occur for David’s death. The provided, policy pressure were not in a released relatively however, that the insurer pay “will not time, short injure decedent did himself. loss is caused by .. .intentionally self-in- simply He believed (apparently) that he injuries” flicted and that a compensable bring could that injury ato halt before the loss “must directly independent- injury became life-threatening. That his ly of all other causes from accidental bodi- proved belief incorrect does not plain- save ly injury.” tiffs claim.” Id. at 327. is no dispute
There concerning David’s acts preceded his death. He agree retired We that the decedent’s inten to his locked bedroom in parents’ his emp- tional act of constricting his trachea with ty house, disrobed completely and attached the purpose of depriving his brain of oxy intricate, home-made consisting harness gen is, strangulation an inten —that —was of ropes, weights, and counter-weights tionally self-inflicted injury. Certainly, leading to a noose around his neck. Doc- when the constriction produced a physio tor Blecker concluded in report logical effect on his brain and his body, an David “died because of practicing so-called injury within the meaning of the exclusion ‘autoerotic asphyxiation’.” occurred. See Sims v. Monumental Gen’l
In a
Ins.
(5th
960
well-written and
F.2d
considered
480
opinion,
Cir.1992),
Chief Judge
aff'g 778
Larimer
F.Supp.
(E.D.La.1991) (af
found
that David’s
death was the
firming
result of a
denial of
inju-
self-inflicted
accidental death benefits
ry
granted
First
policy
under
UNUM’s motion for
that excluded coverage for
summary judgment.
See
losses
Critchlow v.
caused
“intentionally self-inflict
First UNUM
America,
injuries]”
Co.
ed
where decedent
had died
of
F.Supp.2d 318,
(W.D.N.Y.2002).
from
autoerotic asphyxiation; holding that
district court found the “intentionally
“[pjartial
self-
strangulation is an injury in and
inflicted injuries” clause to be unambigu-
itself’);
Sigler v. Mutual Benefit Life
ous, and consequently
concluded
Ins. Co.
Cir.1981)
(per
should be accorded
curium).
its commonly under-
And it is undisputed that dece
stood, accepted meaning.
Id. at 326. The
dent’s injury caused his death. That dece
district court rejected appellant’s argu-
dent had engaged in this very activity on
ment that because the decedent
prior
intended
ocсasions without apparently serious
1. Similar
presented
calculations
correct,
to the court
practice
obviously
dangerous
is a
below were 500-1000
per year.
deaths
How-
one.
ever, no matter
figures
are
nearly
more
coverage because
was excluded
tion
consequences
adverse
permanent
injure
at issue contained self-inflict-
policies
activity did
that the
mean
did not
at 1131. One
that he
Id.
injury
the fact
exclusion.
him,
ed
nor does
any less
reviewing.
I
are
case we now
to die mаke
these is the
intend
I
what
following paragraphs
intentional.
add
emphasize our
only to
already have written
Eighth
Fifth and
agree
We
opinion
Larimer’s
Judge
support
firm
constriction
the deliberate
Circuits
opposition.
Kearse’s
despite Judge
depriv-
purpose
windpipe with
one’s
intentionally
is an
ing the brain
consists
dissent herein
Judge Kearse’s
meaning
injury within
from affidavits
excerpts
large part
Sims,
exclusionary clause.
policy’s
*4
the administrative
part of
that are not
In
at 50.
F.2d
Sigler, 663
960 F.2d at
these af-
rejected
Larimer
Judgе
record.
not,
conclusion,
and
we do
reaching this
in-
law
the established
fidavits because
the death
not,
whether
determine
need
cause,
good
to do
absent
him
so
structed
“accidental.”
also
was
cause was shown.
good
no
and
re
appellant’s
have reviewed
We
Judge Kearse
at 322.
F.Supp.2d
198
be
to
and find them
maining arguments
of
propriety
the
challenge
to
appear
AFFIRM
we
Accordingly,
merit.2
without
discretionary decision
Larimer’s
Judge
appellee
granting
court’s order
the district
I can
far as
So
these documents.
exclude
appel
denying
and
judgment
summary
see,
it.
ignores
simply
she
reconsideration.
lant’s motion
deceased,
which
autopsy
Addendum
by the
considered
of the evidence
part
committee, reads,
part,
appeals
GRAAFEILAND,
Circuit
Senior
VAN
the face
blood on
“There
follows:
is
as
Judge:
In
cyanotic.
Head is
mouth.
coming from
verbal
task to cross
pleasant
a
It is not
with at-
masking tape
is
mouth there
the
perspi-
judge
charmingly
as
with a
swords
hemor-
Pharynx is
straps.
tached blue
Judge Kearse.
colleague
my
cacious as
groove
deep
... There is
rhagic.
in the
true
instant
particularly
This is
Moreover, the
neck.” J.A. at
around
the correct
accomplish
I could
where
are
handiwork
the decedent’s
of
effects
Judge Edward
by quoting
simply
sult
autopsy photographs
in the
plainly visible
opinion in
dissenting
fine
Leavy’s
Padfield
in the administra-
contained
that also are
1121,
Co.,
1130-
290 F.3d
v. AIG Life
ef-
gruesome
Whether
tive record.
Cir.2002),
case upon
34
partial
depicted
thus
resulted
fects
Judge
heavily relies.
so
Judge Kearse
therе can
strangulation,
complete
in which
cases
four ERISA
Leavy cited
they
self-inflicted.
question that
asphyxia-
resulting from
decedent’s
nature
fact as
issue
did
district court
that the
2. We conclude
in-
to consider
whether
decision
death. The
appellant's
denying
discretion
abuse its
record
administrative
reconsideration,
outside
prof-
formation
in which
motion for
"good
where there
discretionary one even
before
were not
expert
affidavits
fered
Int’l
v. American
DeFelice
cause.”
outside
and werе
Life
plan administrator
61,66 (2d
N.Y.,
F.3d
Co.
Assurance
stated
The court
record.
the administrative
Cir.1997).
court concluded
Because the
even it
be altered
not
affidavits;
that its decision would
decision, it
its
alter
would not
affidavits
their asser-
were to consider
deny the
discretion to
an abuse of
was not
plain language of
tions conflicted
reconsideration.
motion for
an
raise
thus did not
policy exclusion
Judge
argues
Kearse
See,
we err
eral common law.
e.g., Firestone Tire
failing
interpret
exclusionary
Bruch,
clаuse & Rubber
101,
Co. v.
110,
489 U.S.
948, 103
“in
ordinary
issue
popular
(1989);
S.Ct.
sense
L.Ed.2d 80
Todd
person
would a
AIG
average intelligence
1448,
Insurance
47 F.3d
Life
(5th Cir.1995) (“Todd”)
(White,
and experience.” On
contrary,
Asso
we
(Ret.),
hold,
ciate Justice
court,
sitting by
as did the district
designation)
that when an
(“Congress,
ERISA,
adopting
individual purposely places a noose around
that ‘a federal
neck,
rights
common law of
purposely
employs that noose to
obligations under ERISA-regulated plans
cut off his breathing,
ultimately
dies
”)
would develop.’
(quoting Pilot
In
from the very strangulation which he him-
Dedeaux,
surance
41,
Co. v.
481 U.S.
initiated,
self
that person has dies of an
(1987)).
107 S.Ct.
plain
See,
meanings.
e.g., Fay v. Oxford
Plan,
(2d
Health
KEARSE,
Cir.
Circuit Judge, dissenting.
2002) (“Fay”); Masella v. Blue Cross &
I respectfully dissent
majori-
from the
Connecticut, Inc.,
Blue Shield
936 F.2d
ty’s affirmance of the
court’s ruling
district
*5
(2d
98,
Cir.1991); Todd,
107
47 F.3d at
that,
law,
as a matter of
during
the
(“
1452 n. 1
interpret
plans
We
ERISA
in
practice of autoerotic asphyxiation, result-
an ordinary
popular
and
sense would a
ing from the decedent’s miscalculation or
person of average intelligence and experi
from the
escape
malfunction of his
appara-
”
ence.’
(quoting
Inc.,
Meredith v. Allsteel
“
tus, is
by
‘caused
...
intentionally self-
(7th
1354,
Cir.1993))).
11 F.3d
1358
Lan
”
injuries,’
inflicted
Majority Opinion ante
“
guage in
plan
ambiguous
‘is
when it is
at 132 (quoting insurance policy) espe-—
capable of more than one meaning when
cially given the district court’s observation
objectively
viewed
by a reasonably intelli
(“Critchlow”)
here that plaintiffs son
had
gent person who has
the
examined
cоntext
up
set
elaborate “escape mechanisms ...
”
of the
... agreement.’
entire
Fay, 287
to ensure
he
did not
asphyxia-
die of
F.3d at 104 (quoting O’Neil v. Retirement
tion,” Critchlow v. First UNUM
In-
Life
Plan
Salaried Employees
RKO
America,
surance Co.
198 F.Supp.2d
General,Inc.,
55,
(2d
37
Cir.1994));
F.3d
59
318,
(W.D.N.Y.2002) (“District
320
Court
see, e.g., Babikian v. Paul Revere Life
Opinion”),
majority’s
and the
acknowledge-
Co.,
(9th
837,
Insurance
63 F.3d
840
Cir.
ment that
engaged
Critchlow “had
in this
1995) (in determining
language
whether
very
activity
prior occasions without
ambiguous, federal courts “interpret terms
apparently
permanеnt
serious or
adverse
in ERISA
policies
insurance
in an ordinary
consequences,” Majority Opinion ante at
popular
and
sense as
person
would a
average intelligence
(in
experience”
and
The group accidental-death-and-dismem-
omitted)).
ternal quotation marks
Ambi
berment
policy
insurance
issued
defen- guities in an ERISA plan’s language are to
dant First UNUM Life Insurance Co. be
against
construed
See,
the insurer.
(“First UNUM”)
covering
e.g., Fay,
287 F.3d at
Kinstler v.
which was part of an ERISA-regulated
First Reliance Standard
Insurance
Life
plan, provides the insurer “will
Co.,
not
243,
(2d
181 F.3d
Cir.1999);
251-52
pay if the
loss is caused
intentional- Babikian v. Paul Revere
Insurance
Life
ly
injuries.”
self-inflicted
plan Co.,
An ERISA
840; Todd,
135
ordinary
pop-
states,
in their
read]
policy [be
majority
the
present
In the
(internal quotation
sense,”
1130
In-
id. at
ular
General
Monumental
v.
citing Sims
(5th
omitted),
held that recov-
Cir.
the court
480
Co.,
F.2d
surance
Ben-
for death dur-
(“Sims ”),
policy
1992)
Sigler
ery
v. Mutual
an ERISA
under
Co.,
preclud-
F.2d
“is
asphyxiation
ing
Insurance
efit
Cir.1981)
“agree[s]
that it
(“Sigler”),
resulting
for death
by the exсlusion
ed
injury,’”
Circuits
Eighth
Fifth and
‘intentionally
with
windpipe
(“[Ajutoerotic
on one’s
as-
id.;
constriction
deliberate
id. at
see also
the brain
depriving
purpose of
intentionally
self-in-
is not an
phyxiation
in-
intentionally self-inflicted
an
injury.”).
flicted
meaning
policy’s
within
jury
analysis,
subjective/objective
Under
Majority Opinion
exclusionary clause.”
however,
the in-
asks whether
court first
Sigler,
[t]he
133. Sims
ante at
expectation
lacked an
subjectively
rather were
but
sured
cases
not ERISA
law.
Wickman
injury.
state
See
diversity actions controlled
itself,
dealing
аn
Nat’l
Fifth Circuit
Northwestern
(1st Cir.1990)
Todd,
(“Requiring
that ERISA
noted
claim
by resort
answered
of the rea-
may
perspective
analysis from
questions
law
that state
only to
extent
the in-
law
shoes of
state
person
sonable
law, and it
federal
conflict with
that accident
fulfills the axiom
sured
instead
Sigler,
Sims
to follow
perspective
declined
judged from
should be
principles
law
common
federal
applying
insured.”).
so,
asks
the court
If
under
asserted
developed for
claims
underlay
suppositions
whether
Todd,
n. 4.
at 1453 &
47 F.3d
ERISA.
were reason-
the insured’s
*6
insured,
able,
the
persрective
the
decision
appellate
federal
only
great deal
insured a
allowing the
the question
that visits
I am aware
the
account
taking into
during the
and
occurring
latitude
a death
of whether
and
personal characteristics
asphyxia
insured’s
of autoerotic
practice
decedent’s
subjective
‘intentionally
If the
id.
experiences.
of an
the
“was
tion
”
meaning
the
cannot be as-
within
of the insured
injury’
expectation
by
certained,
a rea-
policy covered
court
whether
insurance
the
asks
of an
Co., 290
Insurance
and
background
v. AIG
person,
is
sonable
Padfield
Cir.)
insured,
1121,
(“Padfield”),
the
1127-28
to
similar
characteristics
denied,
S.Ct.
resulting
537 U.S.
cert.
the
have viewed
would
(2002). The
L.Ed.2d
substantially
certain to re-
or death
Padfield
ques
answer
stated
court
conduct.
the insured’s
sult from
con
physical
“hinge[d] whether
tion
(emphases add-
F.3d at 1126
Padfield, 290
were
Padfield intended
that Mr.
sequences
ed).
court noted that
they
injuries, and
injuries.
they
If
[ajutoerotic
a repetitive
asphyxiation
and
applies,
exclusion
to his
led
en-
individuals
of behaviоr
pattern
Id.
benefits.”
correctly denied
AIG
years,
period
in over
gage
law
“federal common
Applying
individuals
the intent
generally
under ERISA-
obligations
rights and
....
this act is
performing
by both
“guided
plans,” regulated
act
successfully, the
performed
When
analysis employed
subjeetive/objective
decrease in
temporary
in a
only
sults
mandate
ERISA cases
other
light-headed-
that causes
oxygen levels
ERISA-governed
in an
provisions
ness, and usually does not leave visible
and expected, although
marks on the neck.
reasоnable:
(internal
Id.
quotation
omitted) (em-
asphyxiation
marks
Autoerotic
practitioners ex-
added).
pect
phasis
However,
to survive
experience,
and there
[bjecause
nothing to suggest that Mr.
Padfield
equipment malfunction, er-
subjectively
rors in
otherwise.
placement
of the noose or
Though the
limited,
record is
appears
ligature,
mistakes,
or other
accidental
that Mr. Padfield had a history of en-
deaths sometimes occur. Data from the
gaging in this autoerotic behavior and
States,
United
England, Austrаlia, and
surviving it.... Because
au-
Canada indicate that one to two hypoxy-
toerotic asphyxiation is statistically rare,
philia-caused
per
deaths
million popula-
his expectation of survival certainly was
tion are detected and reported each
reasonable.
year....
But
use of asphyxia to
Even if we could not determine Mr.
heighten sexual arousal more often than
Padfield’s subjective expectations,
[has] nonfatal outcome....
same conclusion would be warranted un-
(internal
Id. at 1125-26
quotation marks
a purely
der
objective analysis because
omitted);
(“death
see
id.
also
at 1127
death is not the “substantially certain”
asphyxiation is
statistically
result of autoerotic asphyxiation....
rare”); Hazelwood, Dietz & Burgess, Au
Given the uniform medical and behavior-
(1983)
toerotic
(cited
Fatalities 49
in Pad
al science evidence indicating that au-
field,
290 F.3d at
Todd,
47 F.3d
toerotic activity ordinarily has a nonfatal
at 1457 (considering whether death during
outcome, the likelihood of death from
autoerotic asрhyxiation was
by a
covered
autoerotic activity falls far short of what
differently-worded ERISA-regulated poli
would be required
negate
coverage
cy that contained no general exclusion for
under
accidental death policy.
death caused by self-inflicted injury)).
Padfield,
(other
jectively reasonable”
resulting from
accidental
motion for
cate an
by First UNUM’s
supported
judgment
or error
sub-
First UNUM
miscalculation
summary judgment.
sexual behavior
(along
course
deviant
following evidence
only the
mitted
merely
introduced
two affidavits
*8
documents)
which
risk-taking
in
of its motion:
behavior
support
[T]he
these
...
(b)
plaintiffs
cannot be construed
(a)
policy,
death
to this
the insurancе
led
multi-
ap-
People engage
a
wish.
policy,
under the
to
death
claim
autopsy
dangerous activities
possibly
police
relevant
pended the
tudes
racing
basis,
(c)
denying
ranging from auto
letters
daily
a
First UNUM’s
reports,
alpine
to
(d)
to DWI
pre-
claim,
reports
bungee jumping
two
to
plaintiffs
few, and
name a
climbing, to
to
by plaintiff,
mountain
experts retained
pared
awry,
something goes
occasionally die
by Robert
wit,
report
January
in-
any claim of self-destructive
Opin-
(“Greendyke
without
Greendyke, M.D.
M.
said,
of sexuаl
in the heat
Simply
tent.
report
ion”),
February
and a
guar-
to
excitement,
failed
Director,
Critchlow
Mr.
Hucker,
J.
Medical
Stephen
antee his own safety. That
precau-
injury, the fact remains that Critchlow’s
tions had worked previously
quite
is
was
caused by “partial” strangu-
clear from the evidence that his autoero-
lation. His death resulted from total
ticism was not a first-time event but
strangulation. And although the majority
elaborate,
rather an
prearranged sce-
appears to impute to
goal
Critchlow the
nario.
In оther words he
expec-
had no
total strangulation, see Majority Opinion
tation of
and that expectation
(Critchlow’s
ante at 132
“intentionally self-
objectively reasonable,
i.e. that death
inflicted injury” was the “intentional act of
was not substantially likely to result
constricting his trachea with
purpose
from his conduct.
of depriving his
is,
brain of
—that
strangulation”), that
(Greendyke Opinion
proposition
is square-
see also id. at 3
(“[Djeath
ly contrary
record,
to the
was not a
normal Critchlow
had set
behavior.”).)
up a comрlicated
escape
First
mecha-
UNUM submit-
nism
ted
“to
contrary
ensure that
expert
he did
opinions.
not die of
asphyxiation,” District
Opinion,
Court
The Hucker and Greendyke Opinions
F.Supp.2d at 320.
submitted
the district court
pres-
in the
ent
are entirely
case
Finally, I disagree
consistent with the
with the majority’s
medical and
view
behavioral
evidence discussed
“when the
produced
constriction
Todd,
indicating
physiological
that death
effect on
brain
[Critchlow’s]
Padfield
by autoerotic asphyxiation
body,
and his
statistically
an injury within the meaning
act,
rare and that
when performed
of the exclusion occurred.” Majority opin-
successfully, results in a
in oxy-
decrease
ion ante at 132.
that formulation,
Under
gen that causes only temporary lighthead- many activities and exercises would consti-
edness and leaves no marks. The Fifth
“injury”
tute
such as to relieve the insurer
Circuit concluded that Todd’s expectation
obligation
pay
for far less exotic
was objectively
survival
reasonable even
accidents. Given that the physiological ef-
though the record did not reveal whether
fects at issue here —absent an accident—
Todd himself had ever engaged in that
are a temporary lightheadedness and eu-
practice
Todd,
before.
The apparent linchpin of the district biguous, should, in accordance with court’s grant of summary judgment principles, against First construed UNUM in present case was its First UNUM. view “[pjarbial strangulation is an injury in and of itself.” District Court In rеsponse to the Addendum’s state- *9 Opinion, (internal at F.Supp.2d ment that this dissent “consists large quotation omitted) (emphasis part add- of excerpts from affidavits that are ed). partial Even if strangulation, which part record,” administrative I itself does permanent serious or dam- point out that I have excerpted only here age, properly were to be considered an appear statements that in the majority inor opinion, court’s in the district opinion, First the defendant submitted
papers for sum- its motion support
UNUM event, re- any In
mary judgment. experts plaintiffs opinions
gard deci- administrative after
rendered first submitted
sion—which note- First UNUM—it
district court (a) court stated district
worthy that not be different would its decision experts’ plaintiffs considered
even (b) merely views
views, those own court’s the district to underline
serve appear “[i]t
statements to die intended
that decedent Opinion, Court evening,” District that Critchlow’s at
F.Supp.2d injury,” id. was an “unintended
“death”
324. I would this record
Accordingly, on summary judgment grant
verse and rule that First UNUM
favor of granted have court should
district made summary judgment
cross-motion
by plaintiff. MCELROY, Appellant
Paul F. HEALTH & BEECHAM
SMITHKLINE TRUST BENEFITS
WELFARE EMPLOYEES;
PLAN FOR U.S. Beecham; Provi- Unum
SmithKline Corporation
dent 02-3421.
No. Appeals, States Court
United Circuit.
Third May
Argued 6, 2003. Aug.
Filed