United States v. SalamehUnited States v. Salameh
AFFIRMED, as modified on appeal.[Copyrighted Material Omitted]
Karl Metzner, Assistant United States Attorney, for Mary Jo White, United States Attorney for the Southern District of New York (David Berardinelli and Baruch Weiss, Assistant United States Attorneys, on the brief), for Appellee.
Frank Handelman, New York, Ny, for Defendant-Appellant Salameh.
Francisco Celedonio, New York, Ny, for Defendant-Appellant Ayyad.
Maranda E. Fritz, Fritz & Miller, New York, Ny, for Defendant-Appellant Ajaj.
Lawrence Mark Stern, New York, Ny, for Defendant-Appellant Abouhalima.
Before: McLAUGHLIN, Calabresi, Pooler, Circuit Judges.
Per Curiam
2 In a separate summary order filed today, we affirm the district court‘s denial of the post-trial motions. In this opinion, we consider appellants’ challenges to their sentences.
3 On appeal, defendants argue principally (1) that the district court used an improper method to calculate terms of imprisonment one month short of each defendant‘s life expectancy, (2) that in imposing fines and restitution the district court failed to take adequate account of defendants’ current indigency and improperly considered the possibility of future income that might become available from the sale of accounts of their crimes, and (3) that the district court erred in imposing on each defendant two consecutive sentencеs for firearm offenses under
4 We modify the fines and the restitution orders and, in all other respects, affirm the sentences.
Background
5 The facts of this case were extensively described in our previous opinion and need not be reiterated here except as noted below. All four defendants were convicted on Count One, conspiracy (a) to bomb buildings used in interstate and foreign commerce,
Discussion
I. Calculation of Life Expectancy
7 Judge Duffy determined that, under the Sentencing Guidelines, defendants’ crimes in Counts 1-6 & 8 merited a life sentence under Guideline § 2A1.1, the section that applies to first-degree murder and to arsons resulting in death. See United States v. Tocco, 135 F.3d 116, 130-31 (2d Cir. 1998); Guideline § 2K1.4(c) (cross-referencing homicide guidelines when death results from use of an explosive аgainst property);
8 In 1994, after the crimes but before sentencing, Congress amended the statute to delete the jury directive requirement, but Judge Duffy determined that he was bound by the earlier version of the statute, as we had strongly suggested in Tocco, 135 F.3d at 132. Accordingly, he followed the procedure, approved in Tocco, of imposing a term of years that, if defendants lived to exactly their life expectancy as of the time of sentencing, would expire one month before their deaths. Judge Duffy determined the appropriate length of sentence by assuming, first, that each defendаnt would live to the age expected of a white male member of the general United States population who was born in the same year as defendant, and, second, that each defendant would receive the maximum “good time” credit allowable, see
9 We need not, however, delve into Judge Duffy‘s methods because appellants have no legal right to a sentence that is shorter than their correct life expectancy. While these appeals were pending, we held in United States v. Joyner, 201 F.3d 61 (2d Cir. 2000), that defendants, who were sentenced after the effective date of the 1994 amendments to
II. Fines and Restitution
10 Appellants argue that the $250,000 fine and $250,000,000 in restitution imposed upon each of them failed to take adequate account of their indigency. We review these aspects of the sentence for an abuse of discretion. See United States v. Wong, 40 F.3d 1347, 1383 (2d Cir. 1994); United States v. Lavin, 27 F.3d 40, 42 (2d Cir. 1994).
12 Here, it was undisputеd that defendants were indigent at the time of sentencing. Judge Duffy plainly understood as much, but he determined that the level of media interest in the World Trade Center bombing was such that “[t]his is a case where [a] real possibility exists that you will be in position to receive large amounts of money.” In support of this conclusion, Judge Duffy cited a number of specific television shows and books concerning the bombing, as well as two occasions on whiсh different co-conspirators had suggested some interest in writing a book.
13 In light of the considerations cited by the district court, and in the absence of any evidence from defendants to counter the inference that future income from media contracts was a substantial possibility, we find that the court acted within its discretion in basing the fines on defendants’ future earnings potential. Indeed, this is precisely the sort of case anticipated in Wong, where, while rejecting a fine based on the “remote fortuity” that a defendant would win the lottery, we contrasted the speculative nature of such a fine with one where “defendants in [a] ‘highly publicized crime’ might be able to generate future income ‘from books or movies about [the] crime.‘” 40 F.3d at 1383 (quoting United States v. Seale, 20 F.3d 1279, 1286 (3d Cir. 1994)) (second alteration in original). Similar considerations justify our approval of the restitution order. See United States v. Giwah, 84 F.3d 109, 114 (2d Cir. 1996) (explaining that a sentencing judge must consider a defendant‘s indigency, but that once he has done so, our review is “extremely deferential“).
14 Appellants also argue that even if (based on the potential for future earnings) the amount of the fines and restitution is permissible, the realization of that potential is sufficiently uncertain as to make the timing of payment imposed by Judge Duffy improper, since his judgment specified immediate payment. The government agrees and, indеed, argues that Judge Duffy‘s oral pronouncement of sentence contemplated that the fines and restitution would be made contingent on defendants’ receipt of monies from any media contracts that might be forthcoming.
15 “Where an unambiguous oral sentence conflicts with the written judgment, the constitutional right of a defendant to be present at sentencing dictates that the oral pronouncement of sentence must cоntrol.” United States v. A-Abras Inc., 185 F.3d 26, 29 (2d Cir. 1999). Accordingly, the government urges us to correct the judgment on our own, rather than remanding the case for resentencing in the district court. Cf. S.E.C. v. Palmisano, 135 F.3d 860, 863-64 (2d Cir. 1998) (modifying a civil judgment to include a setoff); United States v. Harris, 367 F.2d 826, 827 (2d Cir. 1966) (revising a criminal judgment “in the exercise of the peculiar power of the federal courts to revise sentences in contempt cases” (internal quotation marks omitted)).
16 In this court, the parties have stipulated that the entire amount of both the fines and the restitution should, in сonformity with Judge Duffy‘s oral pronouncements, be made contingent upon the realization of future earnings from media contracts and that, in the absence of such earnings, defendants will not be required to pay any fines or restitution, even though they may have minor earnings from other sources such as prison wages. We accept that stipulation and affirm the district court‘s imposition of a $250,000 fine and $250,000,000 in restitution,1 but modify the judgments so that each defendant‘s fine and restitution obligations come due only if he receives income from the sale of his account of the World Trade Center bombing or of the events leading up to it.2
17 In addition to the terms of imprisonment placed on the defendants for their convictions on Counts 1-6 & 8, the district court imposed two further, consecutive, 30-year terms of imprisonment for their convictions on Counts 9 & 10, which asserted that the defendants had used or carried a firearm in connection with a crime of violence. See
18 Dеfendants make two arguments for treating one or both of these additional sentences as improperly duplicative. First, they contend that the sentences under
19 As a preliminary matter, we note that there is generally no constitutional bar to the imposition, within a single criminal proceeding, of multiple punishments for the same criminal conduct. This is so because double jeopardy principles do “no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” United States v. Khalil, 214 F.3d 111, 117 (2d Cir. 2000) (internal quotation marks omitted). Nonetheless, as a matter of statutory construction, we are reluctant to “‘turn[] a single transaction into multiple offenses.‘” United States v. Lindsay, 985 F.2d 666, 672-73 (2d Cir. 1993) (quoting Bell v. United States, 349 U.S. 81, 84 (1955)). We therefore impute to Congress the intent to impose separate punishments for the same underlying conduct only when Congress has clearly articulated that intent. See United States v. Mohammed, 27 F.3d 815, 819 (2d Cir. 1994).
20 Viewed in this light, defendants’ first argument, which refers to what one might call the “vertical” relationship between each
21 Defendants’ second argument, which pertains to what one might call the “horizontal” relationship between the two separate
23 Defendants would analogize this case to Finley by saying that here we have two separate underlying crimes but only a single “use” of a firearm, that is, the explosion of the bomb in the World Trade Center. Even with the issue framed this way, Finley is arguably distinguishable because the conspirаcy charged in Count 1 involved a range of time and conduct far broader than the assault charged in Count 8. But we need not decide that question because we are not here faced with a situation in which defendants’
24 In the case before us, defendants’ convictions on the substantive counts entailed jury findings that they had both carried the bomb from New Jersey to New York and used the bomb by dеtonating it in the World Trade Center.5 Of particular significance is the fact that transportation of the bomb, independent of its later detonation, is conduct that Congress has chosen to criminalize under a distinct statute,
IV. Ajaj‘s Culpability
25 Ajaj argues (a) that his involvement in the actual bombing was sufficiently attenuated as to make inappropriate the
26 As discussed above, the first-degree murder guideline is properly applied to arsons resulting in death, even if a defendant did not know or intend that death would result. See Tocco, 135 F.3d at 130. Lack of such mens rea may provide the basis for a downward departure, but such a departure is not mandatory and its denial is unreviewable absent circumstances not present here. See id. at 131. This framework, moreover, is equally applicable to convictions for conspiracy and, on a Pinkerton theory, for substantive crimes. See United States v. Diaz, 176 F.3d 52, 123-24 (2d Cir. 1999); United States v. Nichols, 169 F.3d 1255, 1272-75 (10th Cir. 1999);
Conclusion
28 We have considered all of defendants’ arguments as to sentencing and, except as noted above with regard to the fines and restitution orders, we have found them to be meritless. Accordingly, we AFFIRM the sentence imposed by the district court, as modified in the manner described above and with the opportunity for the objection stated in note 2.