UNITED STATES OF AMERICA v. PAUL CALDER LEROUX, AKA JOHAN SMIT
Docket Nos. 20-2184-cr, 20-3410-cr
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
June 3, 2022
August Term, 2021 (Argued: March 7, 2022)
Before: CHIN, LOHIER, and ROBINSON, Circuit Judges.
Wе consider whether the United States District Court for the Southern District of New York (Abrams, J.) erred when, pursuant to the CARES Act, it sentenced Paul Calder Leroux by videoconference after finding that Leroux had knowingly and voluntarily waived his right to physical presence at his sentencing proceedings and that the proceedings could not be further delayed without serious harm to the interests of justice. We identify no error in the District Court‘s CARES Act findings or its decision to proceed by videoconference. AFFIRMED.
* The Clerk of Court is directed to amend the caption as set forth above.
JEFFREY CHABROWE, The Law Office of Jeffrey Chabrowe, New York, NY, for Defendant-Appellant Paul Calder Leroux.
MICHAEL D. LOCKARD, Assistant United States Attorney (Won S. Shin, Assistant United States Attorney, on the brief), for Damian Williams, United States Attorney for the Southern District of New York, New York, NY, for Appellee United States of America.
This appeal is our first opportunity to consider what findings a district court must make under the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act“) before it proceeds tо sentence a defendant by videoconference rather than in person. Because the question of what a district court must do under these circumstances is likely to recur given the pandemic‘s duration, we address and resolve the issue by opinion in this case. Finding no error in the conclusion of the United States District Court for the Southern District of New York (Abrams, J.) that the CARES Act‘s requirements for proceeding by videoconference were satisfied in Lеroux‘s case, we AFFIRM.
BACKGROUND
By the time he was arrested and charged in 2012, Paul Calder Leroux, the appellant, had led a global criminal empire, based in the Philippines, for roughly eight years. To give a sense of the scope and viciousness of Leroux‘s crimes, we need only excerpt a portion of what the District Court said at his sentencing years later, in 2020:
I have before me a man who has engaged in conduct in keeping with the villain in a James Bond mоvie. He operated a mercenary team that committed beatings, shootings, and firebombs. He participated in the murder for hire of at least seven people.
And let‘s just pause there for a minute. There are seven people -- Herbert Chu, David Smith, Chito, Naomi Edillor, Catherine Lee, Joe Frank Zuñiga, and Bruce Jones -- whose loved ones will never see them, hold them, or speak to them again. In the case of Catherine Lee, she was shot in the face and her lifeless body was left on a pile of garbage. Others were shot and their bodies anchored to boats and sunk in the water. The bodies of others still have not yet been found.
Mr. Leroux trafficked in illegal pharmaceuticals: methamphetamine and cocaine.
He smuggled gold, chemicals, and weapons on several continents. He ran a weapons research and development program for the Iranian government. He attempted to acquire surface-to-air missiles. He laundered funds from a pharmaceutical company. He planned a coup in the Seychelles. And he bribed government officials in the Philippines, China, Laos, Africa, and Brazil. If Paul Calder Leroux had a situation that he could bribe or kill his way out of, he did so.
App‘x 245-46.
In 2014, after his arrest, Leroux began to cooperate with the Government, waived indictment, and pleaded guilty to those crimes for which jurisdiction existed in the United States: conspiring to import over 500 grams of methamphetamine into the United States, in violation of
After Leroux testified as a cooperating witness at the trial of some of his former criminal associates, the District Court set sentencing for August 2019. For reasons not relevant to this appeal, that proceeding was adjourned, and on March 9, 2020, the District Court rescheduled sentencing for May 29, 2020—as we now know, but as the District Court may not then have foreseen, some two months after the start of the COVID-19 pandemic in the United States.
On March 27, 2020, Congress enacted the CARES Act, which authorizes the expanded use of videoconferencing and telephone conferencing in criminal proceedings if certain conditions are met. See
After another brief adjournment of the May 2020 sentencing date due to the COVID-19 pandemic, and under the authorization provided by the CARES Act and the Standing Order, the District Judge decided to sentence Leroux by videoconference on June 12, 2020. At the start of the sentencing hearing, Judge Abrams confirmed that Leroux, who was “accessing th[e] video conference from [a detention] facility,” App‘x 211, could hear and see her аnd the other participants in the videoconference, including his attorney. After informing Leroux that he could “speak privately with [his] attorney” by being moved with counsel “into a remote breakout room where no one else [could] see [him] or hear [him],” App‘x 211, Judge Abrams established that Leroux understood and waived his right to be physically present in the courtroom:
THE COURT: So I understand from defense counsel, Mr. Leroux, that you wish to waive your physical prеsence and proceed by video conference today. Is that correct?
THE DEFENDANT: Yes, your Honor.
THE COURT: And did your attorney explain to you that you have a right to be present in court when you are sentenced and that by --
THE DEFENDANT: Yes, your Honor.
THE COURT: -- consenting to proceed by video conference you are waiving that right? Do you understand that?
Yes? Is that right, Mr. Leroux?
THE DEFENDANT: Yes, your Honor.
App‘x 211-12. Judge Abrams also asked Leroux‘s attorney to explain “the process by which” the attorney “discussed with Mr. Leroux his right to be present and his willing and voluntary waiver of that right.” App‘x 212. Leroux‘s attorney responded as follows:
Your Honor, I discussed with Mr. Leroux the option of doing the sentencing remotely or doing it live in a courtroom and . . . when that potentially could be . . . , and how this would be potentially different. And Mr. Leroux, after a lengthy discussion, said that he wanted to go forward with this, doing it by video as we‘re doing it today.
App‘x 212. Having heard from both Leroux and his attorney on the issue, Judge Abrams found that Leroux had “knowingly and vоluntarily waived the right to be physically present for this sentencing.” App‘x 213. Judge Abrams also determined, without elaboration, that Leroux‘s sentencing could not “be further delayed without serious harm to the interest of justice.” App‘x 213.
The District Court then proceeded to the substance of the sentencing hearing. First, it adopted the factual findings and Guidelines calculations contained in Leroux‘s Pre-Sentence Report, to which neither party objectеd. Then, after considering each party‘s arguments, it sentenced Leroux principally to 25 years’ imprisonment to be followed by a lifetime term of supervised release.
After the sentencing hearing, the District Court identified an error in how it had allocated sentences for certain counts
immediately as an avenue to obtain an earlier release from detention and to be designated sooner to a correctional facility. After correcting the technical sentencing error that initially prompted the supplemental hearing, the District Court again sentenced Leroux principally to a term of 25 years’ imprisonment to be followed by a lifetime term of supervised release.
This appeal followed.
DISCUSSION
“Under both the Constitution and Federal Rule of Criminal Procedure 43(a)(3), a criminal defendant has the right to be present during sentencing.” United States v. Salim, 690 F.3d 115, 122 (2d Cir. 2012). In Salim, we assumed that the physical presence requirement under
The CARES Act created a statutory exception to the physical presence requirement under
(1) the Judicial Conference of the United States “finds that emergency conditions . . . with respect to [COVID-19] will materially affect the functioning of either the Federal courts generally or a particular district court,”
§ 15002(b)(2)(A) ; (2) the chief district judge finds that felony sentencing hearings “cannot be conducted in person without seriously jeopardizing public health,”id. ; (3) “thе district judge in a particular case finds for specificreasons that the . . . sentencing . . . cannot be further delayed without serious harm to the interests of justice,” id. ; and (4) the defendant consents “after consultation with counsel,”§ 15002(b)(4) .
United States v. Coffin, 23 F.4th 778, 779 (7th Cir. 2022).
There is no dispute that the first two conditions are satisfied here. As noted, the Judicial Conference approved a temporary exception to the rule against broadcasts of criminal proceedings, permitting a judge to authorize the use of videoconferencing to provide the public and media with access to court proceedings because emergency conditions compelled it. And Chief Judge McMahon found that public access to the federal courthouse where Leroux‘s sentencing took place had to be restricted due to health and safety concerns arising from the pandemic. Leroux‘s consultation with counsel is also not at issue in this case.
We therefore focus on whether the proceedings in this case took place “with the consent of the defendant,” CARES Act § 15002(b)(4), 134 Stat. at 529, and whether the sentencing judge adequately found “for specific reasons that the . . . sentencing . . . [could not] be further delayed without serious harm to the interests of justice,”
On appeal, Leroux claims that the District Court never confirmed that he knowingly and voluntarily waived his right to be physically present for sentencing and failed to give specific reasons in support of its finding that delay would seriously harm the interests of justice, as required by the Act.2 Because Leroux failed to challenge the District Court‘s findings at the sentencing hearings or otherwise object to proceeding with his sentencing by videoconference, we review for plain error. See Salim, 690 F.3d at 124; see also United States v. Garcia, 587 F.3d 509, 515 (2d Cir. 2009).
I
Both parties agree that the defendant‘s consent to be sentenced by videoconference under the CARES Act “must be knowing and voluntary like other waivers of the right to presence protected by Rule 43(a).” United States v. Howell, 24 F.4th 1138, 1143 (7th Cir. 2022). We have no reason to think that Congress intended to depart from this well-established general requirement.
See United States v. Tureseo, 566 F.3d 77, 83 (2d Cir. 2009); see also Berghuis v. Thompkins, 560 U.S. 370, 382-83 (2010) (a waiver of a statutory right in criminal cases must be “the product of a free and deliberate choice rather than intimidation, coercion, or deception, and made with a full awarenеss of both the nature of the right being abandoned and the consequences of the decision to abandon it” (quotation marks omitted)); Salim, 690 F.3d at 123. The Government bears the burden of establishing Leroux‘s consent by a preponderance of the evidence. See Salim, 690 F.3d at 122.
An oral statement by the defendant expressing his consent to sentencing by videoconference and asserting that he consulted with counsel about his right to be present will usually be enough to establish the defendant‘s consent under § 15002(b)(4), which imposes no “specific
Likewise, at the September 2020 supplemental hearing, the District Court incorporated by reference the proceedings of June 2020—including that part during which the District Court determined that Leroux had consulted with counsel about consenting to proceed with sentencing by videoconference. The District Court asked Leroux if he “again consent[ed] to proceed by video today.” App‘x 267. After Leroux responded, “I do, your Honor,” the District Court specifically found “that a knowing and voluntary waiver of the right to be physically present ha[d] been made.” App‘x 267.
We see nothing in the record—Leroux‘s response, the absence of any objection from either Leroux or his attorney to proceeding by videоconference, or the colloquy during the prior June 2020 sentencing—that suggests that Leroux‘s consent was not knowing or voluntary, or that otherwise casts doubt on the validity of Leroux‘s consent at the June 2020 or the September 2020 hearings. The District Court was entitled to accept both Leroux‘s word and counsel‘s representation that Leroux was fully informed of the rights he would surrender by agreeing to proceed remotely. Cf. Salim, 690 F.3d at 123-24 (in a pre-CARES Act case, finding that the district court failed to ensure that the defendant‘s waiver of physical presence was knowing or voluntary after the defendant said that he only waived the right due to fears of intimidation and physical abuse). We see no error in the District Court‘s finding that Leroux knowingly and voluntarily consented, after consulting his counsel, to proceeding by videoconference.
II
We turn to the next contested issue on appeal. Section 15002(b)(2)(A) provides that if the district judge in a case “finds for specific reasons that the . . . sentencing in that case cannot be further delayed without serious harm to the interests of justice, the . . . sentencing in that case may be conducted by video teleconference.” CARES Act § 15002(b)(2)(A), 134 Stat. at 528-29. During both proceedings, the District Court orally found that the hearings could not be further delayed without serious harm to the interests of justice. App‘x 213, 267. Leroux complains that the court should have given “specific reasons” for this finding but never did. We hold that the District Court properly determined that proceeding by videoconference was in the interest of justice and provided sufficient reason to satisfy § 15002(b)(2)(A).
Recall that during the June 2020 sentencing, the District Court determined that Leroux‘s sentencing could not “be further delayed without serious harm to the
Although the District Court‘s interests-of-justice finding in June 2020 was sparse, the record as a whole—including the District Court‘s articulation of more spеcific reasons for that finding during the September 2020 supplemental hearing—satisfies the requirements of § 15002(b)(2)(A). The analogous context of the Speedy Trial Act supports our analysis here. A district court may grant a continuance and exclude periods of delay from the speedy trial clock so long as the “ends of justice served” by the delay “outweigh the best interest of the public and the defendant in a speedy trial,” and so long as “the court sеts forth, in the record of the case, either orally or in writing, its reasons for” the finding.
To be sure, as in the Speedy Trial Act context, the best practice is for the district court to put its reasons on the record at or near the time it sentences a defendant by videoconference. Id. at 597 (“We continue to stress that whenever possible the district court should make the [end-of-justice] findings required by [the Speedy Trial Act] at the time it grants the continuance.” (quotation marks omitted)). Nevertheless, we conclude that here, based on the record as a whole, the District Court properly determined that delaying Leroux‘s sentence by requiring his physical presence in court would harm the interests of justice.
III
Because the District Court did not err in proceeding by videoconference after Leroux knowingly and voluntarily consented to do so, we need not address the remaining prongs of plain-error review, including whether Leroux‘s substantial rights were affected. We note that in the absence of any specific reasons to conclude that his substantial rights were affected, Leroux can only speculate that his physical presence “may well have afforded some advantage” to his ability to address the District Court‘s concerns about his remorse and rehabilitation. Appellant‘s Br. 27 (emphasis added). But when “the effect of an error on the result in the district court is uncertain[,] indeterminate or only spеculative, we cannot conclude that appellant‘s substantial rights have been affected.” United States v. Worjloh, 546 F.3d 104, 110 (2d Cir. 2008) (quotation marks omitted).
We have considered Leroux‘s remaining arguments not referenced above and conclude that they are without merit. For the foregoing reasons, we AFFIRM.