UNITED STATES OF AMERICA, Appellee, -v.- JOHN SAMPSON, Defendant-Appellant.
No. 17-343-cr
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August 6, 2018
August Term 2017
(Argued: December 7, 2017 Decided: August 6, 2018)
Before: CABRANES, LIVINGSTON, and CARNEY, Circuit Judges.
Defendant-Appellant John Sampson (“Sampson“) appeals from a January 27, 2017 judgment of the United States District Court for the Eastern District of New York (Irizarry, C.J.), following a jury verdict finding him guilty of obstruction of justice and making false statements to federal agents. On appeal, Sampson argues that: (1) the government prosecuted him improperly for a “witness-tampering” offense under
FOR DEFENDANT-APPELLANT: NATHANIEL H. AKERMAN (Joshua Colangelo-Bryan, on the brief), Dorsey & Whitney, New York, NY.
FOR APPELLEE: PAUL TUCHMANN, Assistant United States Attorney (David C. James, Alexander A. Solomon, and Marisa M. Seifan, Assistant United States Attorneys, on the brief), for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, NY.
On July 24, 2015, following a jury trial in the United States District Court for the Eastern District of New York (Irizarry, C.J.), Defendant-Appellant John Sampson (“Sampson“) was convicted of one count of obstruction of justice, in violation of
BACKGROUND
I. Factual Background1
Sampson began serving in the New York State Senate in 1997, representing the 19th Senate District in Brooklyn. Until his expulsion from the Senate in 2015, Sampson was seen as a political “powerhouse.” See Alan Feuer, John Sampson, Once a State Senate Powerhouse, Sentenced to Prison, N.Y. Times, Jan. 19, 2017, at A20. He served as leader of the Democratic Conference of the Senate from June 2009 to December 2012, and Minority Leader of the Senate from January 2011 to December 2012.
Sampson was also licensed to practice law in New York State. As described in more detail in this case‘s companion appeal, United States v. Sampson, No. 15-2869-cr (2d Cir. 2018), Justices of the New York State Supreme Court periodically appointed Sampson to serve as a referee in foreclosure actions for properties located
In July 2006, Sampson asked Edul Ahmad (“Ahmad“), a Queens businessman, to lend him $188,500 so that he could replace funds he had embezzled before the authorities could discover they were missing. Ahmad agreed to lend Sampson the money. Sampson failed to repay Ahmad. After realizing that Sampson would not repay the loan, Ahmad asked Sampson to use his position in the New York State Senate to provide Ahmad with special favors. Sampson subsequently intervened with New York State regulatory agencies conducting reviews of Ahmad‘s business, lobbied for Ahmad to receive potentially lucrative brokerships from national financial institutions, and introduced legislation that would have benefited Ahmad as the owner of a minority-owned business.
In July 2011, Federal Bureau of Investigation (“FBI“) agents arrested Ahmad for mortgage fraud, and the United States Attorney‘s Office for the Eastern District of New York (“the USAO“) commenced its prosecution of Ahmad. After Ahmad was released on bail, he met with Sampson “multiple times.” App‘x at 109.
Sampson told Ahmad that Sampson “had a friend that he had gone to school with” who worked in the USAO, “and that he would reach out to this individual and try to get some information as to the strength of [the USAO‘s] case,” including the names of individuals who might testify against Ahmad should Ahmad choose to go to trial. Id. at 110. The government argued to the jury that Sampson‘s goal was to prevent Ahmad from pleading guilty to the charges, cooperating with the government, and disclosing Sampson‘s crimes. Ahmad accepted Sampson‘s offer to help him acquire names of potential witnesses.
Sampson contacted Samuel Noel (“Noel“), who, at the time, served as a supervisory paralegal at the USAO. Sampson provided Noel with the names of four potential witnesses in Ahmad‘s case: Leesa Shapiro, Glenn Hirsch, Roger Khan (“Khan“), and Premaj Hansraj (“Hansraj“). Noel understood that Sampson was asking him to conduct an improper search of the USAO‘s non-public database and determine who was planning to testify at Ahmad‘s trial. Noel knew that it was a crime for him to provide Sampson with this non-public information.
Nonetheless, after speaking with Sampson, Noel used his government account to run the names of Ahmad, Sampson, and the relevant witnesses through the Public Access to Electronic Records (“PACER“) database. Noel understood at the time that he was forbidden from using PACER for such non-work-related purposes. Next, Noel looked up the names of Ahmad, Sampson, and the relevant witnesses in the Legal Information Office Network System (“LIONS“), a non-public USAO database with confidential information.2 Noel found results for Ahmad, Khan, and Hansraj, but not for the others. Noel later told Sampson that he did not see his name or come across other relevant information in the LIONS database.
Noel also contacted two nonsupervisory USAO paralegals, one working on Ahmad‘s case and the other working in the USAO‘s public integrity section. During a closed-door meeting, Noel told the paralegal working on Ahmad‘s case to inform him of information regarding the case, including if she learned that witnesses were speaking
Ahmad also informed Sampson that the FBI had approached Qayaam Farrouq (“Farrouq“), one of Ahmad‘s co-conspirators in the mortgage fraud. Ahmad told Sampson that he was worried that Farrouq would cooperate with the government. Ahmad therefore suggested that Sampson provide Farrouq with an attorney who would betray attorney-client confidentiality and provide them with information about whether Farrouq would cooperate. Sampson arranged for an attorney to represent Farrouq, instructing Ahmad not to have contact with the attorney directly, but that Sampson himself would communicate with the attorney about Farrouq.
Sampson followed a similar tack after the government arrested Nazir Gurmohamed (“Gurmohamed“), one of Ahmad‘s other co-conspirators. Sampson suggested that he and Ahmad obtain an attorney for Gurmohamed who would breach privilege and inform them if Gurmohamed began cooperating with the government. During the meeting with Ahmad at which this conversation took place, Sampson talked to Farrouq‘s attorney on the phone and solicited information about Farrouq and Gurmohamed‘s arraignments and bail hearings.
As for obtaining a lawyer for Gurmohamed, Sampson instructed Ahmad to pay the attorney in cash so there would be no “money trail.” Id. at 923. Later, Sampson sent Ahmad contact information for the attorney Ahmad was to retain for Gurmohamed.
Sampson also attempted to hire a private investigator, Warren Flagg (“Flagg“), a former FBI agent who worked with the USAO while in that role. Sampson hoped that Flagg could exploit his ties with the USAO to extract information regarding the case against Ahmad. During a meeting, Flagg told Ahmad that it would be illegal for him to secure confidential information about the USAO‘s potential cooperating witnesses. See id. at 1010 (“[I]f I call up a buddy of mine and say, oh, you know this case? First of all, that‘s tampering.“). Nevertheless, Flagg suggested that Ahmad compile a list of possible cooperating witnesses for Flagg to investigate. Sampson repeatedly urged Ahmad to do so. At the same time, Sampson stated that Ahmad did not need to involve his criminal counsel in any of Flagg‘s potential work.
Despite Sampson‘s efforts, Ahmad began to cooperate with the government in November 2011. Sampson and Ahmad met again in February 2012. In preparation for the meeting, pursuant to instructions from law enforcement, Ahmad copied a page from his check register that showed the $188,500 he had transferred to Sampson. During the meeting, Ahmad showed Sampson the copy, informed him that it was responsive to a government subpoena, and asked what he should do. Sampson instructed Ahmad not to produce the check register and to lie to the government about its—and the loan‘s—existence. Sampson then took the copy from Ahmad; he did not return it.
On July 27, 2012, two FBI agents—Ken Hosey (“Agent Hosey“) and Erin Zacher (“Agent Zacher“)—interviewed Sampson and questioned him about the check register page. Sampson claimed not to recall anything about the $188,500 payment that Ahmad had provided him. Agent Hosey
In the same interview, the agents questioned Sampson about his ownership interest in a Brooklyn liquor store. Sampson had previously failed to disclose this interest when submitting a liquor license application to the New York State Liquor Authority. Responding to FBI questioning, however, Sampson admitted he did have the ownership interest. He claimed that his four business partners in the store awarded him the interest as payment for performing certain legal work, but Sampson failed to identify what work he did. He also denied asking one of his Senate staffers to help with a matter related to the store.
At the conclusion of the interview, Hosey informed Sampson that he believed Sampson was lying and that it was a felony to lie to federal agents. Sampson responded, “[n]ot everything I told you was false.” Trial Transcript (“T.“) 2109.
II. Procedural History
On April 29, 2013, a grand jury in the United States District Court for the Eastern District of New York returned an indictment against Sampson that contained nine criminal counts. On March 17, 2015, a grand jury returned a fifth superseding indictment, which contained eleven counts.3 Counts 1 and 2 concerned Sampson‘s alleged embezzlements from the escrow accounts that he oversaw as a referee.4 Count 3 charged Sampson with conspiracy to obstruct justice, in violation of
check register page prior to the FBI interview (Count 9), that he never requested nonpublic information from Noel (Count 10), and that he did not direct a Senate staffer to intervene
A jury trial commenced on June 22, 2015. On July 24, 2015, the jury found Sampson guilty as to Counts 4, 9, and 11. In other words, the jury concluded that Sampson personally obstructed justice in the mortgage fraud investigation and made false statements to Agents Hosey and Zacher regarding his knowledge of the check register page and his use of Senate staff to benefit the liquor store.
On September 14, 2015, Sampson moved for judgments of acquittal on Counts 4 and 9 (but not Count 11) pursuant to
Sampson‘s argument failed on the merits. See id. at *9–13. Sampson also claimed that the check register false statement conviction (i.e., Count 9) was invalid because, inter alia, it was literally true that he had not seen the FBI‘s photocopy of the check register page prior to the interview. The district court rejected this argument, noting that “[o]f course Special Agent Hosey was not asking if Defendant literally had ever seen the actual photocopy then being displayed; Special Agent Hosey was asking if Sampson had ever seen the image depicted therein.” Id. at *17 (emphasis in original).
In addition, on July 5, 2016, Sampson moved for a new trial due to the Supreme Court‘s decision in McDonnell v. United States, 136 S. Ct. 2355 (2016). The district court denied this request, concluding that McDonnell was inapplicable because the government had not charged Sampson with bribery or corruption offenses.
On January 18, 2017, the district court sentenced Sampson to five years of imprisonment on each of the three counts, with the sentences to run concurrently, followed by three years of supervised release. The district court entered judgment on January 27, 2017, and Sampson timely appealed. Sampson is presently serving his sentence.
DISCUSSION
I
Sampson first argues that the government‘s theory of obstruction under
Because Sampson‘s argument raises questions of law, our review is de novo. See United States v. Holcombe, 883 F.3d 12, 15 (2d Cir. 2018). We need not address whether Sampson waived this argument, because even assuming arguendo that he did not, we conclude—for the reasons outlined below—that
A. Overview of 18 U.S.C. § 1503(a) and 18 U.S.C. § 1512
Section 1503(a) of Title 18 criminalizes, inter alia, endeavoring to intimidate, threaten, or injure court officers, commissioners, and jurors. It also contains a residual or “omnibus” clause. See, e.g., United States v. Aguilar, 515 U.S. 593, 598 (1995) (describing
Notes
to convict for obstruction of justice under the omnibus clause of section 1503, the government must establish (1) that there is a pending judicial or grand jury proceeding constituting the administration of justice, (2) that the defendant knew or had notice of the proceeding, and (3) that the defendant acted with the wrongful intent or improper purpose to influence the judicial or grand jury proceeding, whether or not the defendant is successful in doing so—that is, “that the defendant corruptly intended to impede the administration of that judicial proceeding.”
United States v. Quattrone, 441 F.3d 153, 170 (2d Cir. 2006) (quoting United States v. Fassnacht, 332 F.3d 440, 447 (7th Cir. 2003)). The government must show, we have said, that the defendant‘s conduct “ha[d] the natural and probable effect of interfering with a judicial or grand jury proceeding.” Id. at 171.
Before 1982,
Congress passed the Victim and Witness Protection Act, Pub. L. No. 97-291, 96 Stat. 1248 (1982), which was designed to “strengthen existing legal protections for victims and witnesses of federal crimes.” Hernandez, 730 F.2d at 898 (quoting S. Rep. No. 532, 97th Cong., 2d Sess. 9). The Act eliminated all explicit references to witnesses in
B. Hernandez and Masterpol
In Sampson‘s case, the government‘s theory of culpability under
Standing in the way of this commonsense conclusion, Sampson insists, are our decisions in Hernandez and Masterpol. Hernandez involved a defendant who threatened a witness in an effort to coerce him into handing over documentary evidence. Hernandez, 730 F.2d at 897. The government charged the defendant with one count of “witness tampering” under
evidence[] no longer f[ell] within the proscriptions of
We expanded on this reasoning in Masterpol. The defendant in Masterpol was charged under
Sampson argues that Hernandez and Masterpol, properly applied, mandate reversing his
propriety of prosecuting witness-related conduct under
Two considerations undergird our decision today. First, it is undisputed that
Second, and perhaps more importantly, we are currently the only federal court of appeals to suggest that
These two considerations, taken together, lead us to conclude that Hernandez and Masterpol should not be extended beyond the precise situations that our Court confronted in those cases.11 Thus, Hernandez and Masterpol bar the government from prosecuting an individual under
II
Sampson next argues that even assuming
Under our de novo review standard, “[t]o secure reversal based on a flawed jury instruction, a defendant must demonstrate both error and ensuing prejudice.” United States v. Quinones, 511 F.3d 289, 313–14 (2d Cir. 2007). To demonstrate error, the defendant must show that, “as a whole,” the charge “either failed to inform the jury adequately of the law or misled the jury about the correct legal rule.” United States v. McIntosh, 753 F.3d 388, 392 (2d Cir. 2014) (per curiam) (quoting United States v. White, 552 F.3d 240, 246 (2d Cir. 2009)). “An erroneous instruction, unless harmless, requires a new trial.” Quattrone, 441 F.3d at 177 (quoting Anderson v. Branen, 17 F.3d 552, 556 (2d Cir. 1994)).
Here, the district court‘s aiding and abetting instruction reads as follows:
In addition to charging the defendant as a principal, the government has charged the defendant under [an] alternate theory that even if the defendant did not commit the crime charged in Count [Four], the defendant willfully caused another person to physically commit the crime. Thus, you may find that the defendant acted as an aider and abettor if you find that the government has proven beyond a reasonable doubt that he knowingly, willfully and corruptly caused another person to obstruct justice, as I just defined it. . . .
What does the term “willfully caused” mean? It does not mean that the defendant himself need have physically committed the crime, or supervised, or participated in the actual criminal conduct charged in the indictment. The meaning of the term “willfully caused” can be found in the answers to the following questions:
[1] Did the defendant in or about and between July 2011 and July 2012 know that there was a federal proceeding pending before a federal judge or a court; that is the federal prosecution of Edul Ahmad, in the United States District Court of the Eastern District of New York?
[2] Did the defendant intentionally cause another person to obstruct, impede, or influence or corruptly endeavor to obstruct, impede or influence the federal prosecution of Edul Ahmad by obtaining nonpublic information contained in the government‘s files or computer databases?
If the jury is unanimously persuaded beyond a reasonable doubt that the answer to both of these questions is yes, then the defendant is an aider and abettor and is guilty of Count [Four], just as if he had actually committed [the underlying crime].
Supp. App‘x at 26–28 (emphasis added).
Under our case law,
Sampson points to the district court‘s instruction that Sampson would be liable under
Sampson correctly notes that in this portion of the instruction, the district court did not explicitly affirm that Sampson needed to have acted “corruptly,” i.e., with “a specific intent to obstruct a federal judicial or grand jury proceeding,” Schwarz, 283 F.3d at 109. Reading the jury instruction “as a whole,” however, as we must, see McIntosh, 753 F.3d at 392, we believe that it sufficiently conveys the point. As an initial matter, the aiding and abetting instruction begins with the affirmation that the jury may find Sampson guilty if he “knowingly, willfully and corruptly caused another person to obstruct justice,” Supp. App‘x at 27 (emphasis added). See United States v. Mitchell, 328 F.3d 77, 82 (2d Cir. 2003) (“We review a jury charge in its entirety and not on the basis of excerpts taken out of context.” (quoting United States v. Zvi, 168 F.3d 49, 58 (2d Cir. 1998))). The judge had elsewhere defined “corruptly” to mean acting “with an improper purpose” and “knowingly and dishonestly, and with the intent to obstruct, impede or influence the due administration of justice.” Gov‘t App‘x at 200–01.
Moreover, even as to the portion of the instruction on which Sampson focuses his attention, the district court charged that Sampson needed to have ”intentionally cause[d]” Noel to endeavor to obstruct justice. Supp. App‘x at 27 (emphasis added). As noted above, the district court had previously told the jury that a person acts “intentionally” when he acts “deliberately and purposefully.” T. 2465. Thus, the district court effectively told the jury that Sampson must have deliberately and purposefully “cause[d] [Noel] to . . . obstruct, impede, or influence or corruptly endeavor to obstruct, impede, or influence” Ahmed‘s prosecution. Supp. App‘x at 27. This instruction is sufficiently near to the precise words preferred by Sampson—i.e., that Sampson needed to have acted with “a specific intent to obstruct” Ahmed‘s prosecution—that we are unable to discern how the jury could have been misled. That is especially so when this language is properly placed in the context of the instruction‘s earlier admonition that Sampson may be liable under an aiding and abetting theory if the government proved “that he knowingly, willfully, and corruptly caused another person to obstruct justice.” Id. (emphasis added). In short, Sampson has not shown a basis for setting aside his conviction on Count 4. We reject his argument to the contrary.
III
Sampson next challenges his conviction on Count 9 for providing a false statement to federal officials in violation of
Q: [W]hat was the defendant‘s response when you asked him if he had seen the check register page before?
A: When I asked him if he had seen it before, he said he had not.
Q: Did [Sampson] appear to you to have any problem understanding your question regarding whether he‘d seen this check register page before?
A: No. In fact, he said – his quotes were it didn‘t ring a bell, and he didn‘t have a recollection from it.
Q: Did he ask for any clarification regarding the question you asked about the check register page?
A: He said if he could check his files or there was more information, he may be able to recall.
Id. at 780. Sampson makes three arguments as to why the evidence was insufficient to show that his statement concerning the check register page violated
Sampson first argues that his statement to Agent Hosey was literally correct, and therefore cannot be the basis for a
At the start, Agent Hosey did not testify as to the exact phrasing of his question, so the record is not clear whether Agent Hosey in fact asked, “Have you seen this document before?” But even assuming arguendo that he did, there was nothing “true“—literally or otherwise—about Sampson‘s response. Sampson did not simply answer Agent Hosey‘s question with a “no.” According to Agent Hosey, “his quotes were it didn‘t ring a bell, and he didn‘t have a recollection from it.” Id. at 780 (emphasis added). In other words, Sampson did not merely tell Agent Hosey that he had never seen the precise document being presented to him. Sampson insisted that the document did not look familiar to him, and that it did not resemble any document that he had previously seen. See United States v. Schafrick, 871 F.2d 300, 303 (2d Cir. 1989) (noting that a responsive statement “must be judged according to common sense standards“). Moreover, Sampson claimed that “if he could check his files or there was more information, he may be able to recall.” App‘x at 780. In context, here, too, Sampson was asserting that he could not recall seeing any document similar to the photocopy that Agent Hosey was showing him. Sampson could not have possibly meant that he might somehow find, in his own files, the very same photocopy of the check register page. See Schafrick, 871 F.2d at 304 (“If, in the context in which the statements were made, they were materially untrue, then [a violation] is established. This is so even if the statements could be literally true in isolation . . . .“).
The jury thus had more than an ample basis on which to conclude that Sampson‘s response to Agent Hosey‘s question was false. See United States v. Garavito-Garcia, 827 F.3d 242, 248 (2d Cir. 2016) (noting that a defendant challenging the sufficiency of the evidence “bears a heavy burden,” and that a conviction will be upheld “if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (quoting United States v. Allen, 788 F.3d 61, 66 (2d Cir. 2015))). Ahmad testified that he had previously shown Sampson a copy of the check register page, telling him that it was responsive to a government subpoena and that Ahmad needed his advice. According to Ahmad, Sampson instructed Ahmad to lie to the government about the document‘s existence. Sampson then took the copy from Ahmad and did not return it. Given this testimony, and viewing the evidence in the light most favorable to the government, a reasonable jury had sufficient basis to conclude beyond a reasonable doubt that Sampson knew at the time of his interview with Agent Hosey that he had previously seen a document resembling the one that Agent Hosey showed him, and that he falsely claimed that he did not remember having seen such a document.
Sampson next contends that the evidence was insufficient to show that he intended to deceive Agent Hosey and his colleague, Agent Zacher. The district court instructed the jury that a statement or representation is “false or fictitious” under
Finally, Sampson maintains that Agent Hosey‘s question was “fundamentally ambiguous,” see, e.g., United States v. Lighte, 782 F.2d 367, 375 (2d Cir. 1986), and therefore cannot serve as a basis for a
response to Agent Hosey‘s question and his earlier dealings with Ahmad involving the check register page provided sufficient evidence for a reasonable jury to conclude beyond a reasonable doubt that Sampson interpreted the question as Agent Hosey intended and that Sampson knowingly made a false statement in reply. Accordingly, Sampson‘s challenge to his conviction on Count 9 fails.
IV
Sampson next challenges his conviction on Count 11, contending that the district court erred in refusing to admit certain evidence, and in refusing to allow Sampson‘s attorney to ask a question of Agent Hosey during cross-examination. Count 11 charged Sampson with violating
During cross-examination, Sampson sought to introduce notes taken by Agent Zacher during the interview. Sampson offered the notes for two purposes: (1) to demonstrate that Sampson‘s statement that “he had not” asked the Senate staffer for assistance concerning the liquor store did not appear in the notes, which cast doubt on whether Sampson made this statement, and (2) to show that the structure of Agent Hosey‘s interview may have confused Sampson, and perhaps caused him to provide a false statement unintentionally. The government objected, asserting that the notes were hearsay. The judge sustained the government‘s objection. Sampson argues on appeal that the district court erred in refusing to admit the notes.
In addition, and also on cross-examination of Agent Hosey, Sampson‘s attorney attempted to ask him, “Isn‘t it a fact that John Sampson did not deny that he had asked his staff to assist?” Id. at 797. The government objected, and the judge sustained the objection. Sampson‘s attorney did not rephrase the question, but simply moved onto another topic. Sampson argues that the district court erred in refusing to allow his attorney to ask this question, and that the district court‘s evidentiary rulings also violated his Confrontation Clause rights.
“We review evidentiary rulings, including a trial court‘s decision to limit the scope of cross-examination, for abuse of discretion.” United States v. White, 692 F.3d 235, 244 (2d Cir. 2012). This is a “deferential” standard. Gallego v. Northland Grp. Inc., 814 F.3d 123, 129 (2d Cir. 2016). We may find abuse of discretion only if: (1) the decision “cannot be located within the range of permissible decisions,” (2) the decision rests on a “clearly erroneous factual finding,” or (3) the decision “rests on an error of law.” Id. (quoting Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010)). Furthermore, “[a] district court is accorded broad discretion in controlling the scope and extent of cross-examination,” and “may impose reasonable limits on cross-examination to protect against, e.g., harassment, prejudice, confusion, and waste.” United States v. Ulbricht, 858 F.3d 71, 118 (2d Cir. 2017) (quoting United States v. James, 712 F.3d 79, 103 (2d Cir. 2013)). Thus, although the Sixth Amendment‘s Confrontation Clause gives “a defendant the right not only to cross-examination, but to effective cross-examination,” “‘[i]t does not follow . . . that the Confrontation Clause prevents a trial judge from imposing any limits’ on defense counsel‘s cross-examination of government witnesses.” Id. (quoting James, 712 F.3d at 103).
We conclude that the district court did not abuse its discretion—or violate the Confrontation Clause—in either of its evidentiary rulings. First, Agent Zacher‘s notes were hearsay not shown to fall within any exception, and were therefore inadmissible under
Second, the district court did not violate Sampson‘s Confrontation Clause rights by sustaining the government‘s objection to Sampson‘s question. As noted above, a district court can, consistent with the Confrontation Clause, impose reasonable limits on cross-examination to prevent “harassment, prejudice, confusion, and waste.” Ulbricht, 858 F.3d at 118 (quoting James, 712 F.3d at 103). Here, the trial transcript provides ample basis for the district court‘s apparent view that, in asking Agent Hosey about Sampson‘s denial, Sampson‘s attorney was “trying . . . to work an end run around [the district court‘s] rulings” by referring to evidence that the district court had already deemed inadmissible hearsay (that is, Agent Zacher‘s notes). T. 2182. This ruling did not exceed the bounds of the “broad discretion” afforded to district courts in limiting the “scope and extent” of cross-examination. Id. (quoting James, 712 F.3d at 103). The district court did not forbid Sampson‘s attorney from continuing with this line of questioning per se, and Sampson‘s attorney did not attempt to rephrase the question, but instead moved on. Under these circumstances, we do not believe the district court violated Sampson‘s Confrontation Clause rights in sustaining the government‘s objection to a single question.
V
Next, Sampson argues that it was unfairly prejudicial for the district court to admit evidence that Sampson had allegedly engaged in bribery. The government sought a pretrial ruling that it could introduce evidence that Sampson had engaged in political favors for Ahmad once Sampson made clear that he would not repay the money he had borrowed. The district court allowed the government to present this evidence at trial for (at least) two different purposes. See United States v. Sampson, No. 13-CR-269 S-5 DLI, 2015 WL 2066073, at *6 (E.D.N.Y. May 4, 2015) (hereinafter “Sampson 2015“). The first purpose was to demonstrate Sampson‘s motive for endeavoring to obstruct Ahmad‘s prosecution—that is, to prevent Ahmad from cooperating with the government and potentially giving the government incriminating information. Id. The second purpose was to establish, for Counts 5 and 6, that Sampson “hinder[ed], delay[ed], or prevent[ed] the communication to a law enforcement officer . . . information relating to the commission or possible commission of a [f]ederal offense” under
Upon Sampson‘s request, the district court also cautioned the jury repeatedly that Sampson was not on trial for bribery, and that this evidence should not be considered for purposes other than those outlined above.
On appeal, Sampson challenges the admission of the evidence directly to prove Counts 5 and 6, which involved Sampson‘s alleged efforts to prevent law enforcement agents from learning of information relating to the commission of a “federal offense.” Under the government‘s theory at trial, the relevant “federal offense” under
We disagree. “Under Rule 403, so long as the district court has conscientiously balanced the proffered evidence‘s probative value with the risk for prejudice, its conclusion will be disturbed only if it is arbitrary or irrational.” United States v. Awadallah, 436 F.3d 125, 131 (2d Cir. 2006). Here, the evidence of Sampson‘s purported bribery was highly probative—and not merely for the purposes of demonstrating that he violated
Of course, the district court needed to weigh the probative value of this evidence against the danger that it would inflame the jury, or that the jury would be inclined to “declar[e] guilt on a ground different from . . . the offense charged,” Old Chief v. United States, 519 U.S. 172, 180 (1997). The district court did so, however, and determined that the “clear probative value [of the evidence] outweigh[ed] any prejudicial effect on [Sampson],” and that “limiting instructions [would] limit any potential harm to [him].” Sampson 2015, 2015 WL 2066073, at *7. We believe that this decision was neither “arbitrary” nor “irrational,” Awadallah, 436 F.3d at 131, and we therefore reject Sampson‘s argument that his conviction should be vacated on this basis.
VI
Finally, Sampson challenges the reasonableness of his sentence. As noted above, the district court sentenced Sampson to 60 months of imprisonment on Counts 4, 9, and 11, with each sentence to be served concurrently. “We review sentences ‘under a deferential abuse-of-discretion standard.‘” United States v. Young, 811 F.3d 592, 598 (2d Cir. 2016) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). We examine sentences for both “procedural” and “substantive” reasonableness. United States v. Delacruz, 862 F.3d 163, 178 (2d Cir. 2017). “A sentence is procedurally unreasonable if the district court fails to calculate (or improperly calculates) the Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately to explain the chosen sentence.” Ulbricht, 858 F.3d at 124 (quoting United States v. Jesurum, 819 F.3d 667, 670 (2d Cir. 2016)). And a sentence is “substantively unreasonable” if the sentence “cannot be located within the range of permissible decisions . . . tak[ing] into account the totality of the circumstances, giving due deference to the sentencing judge‘s exercise of discretion, and bearing in mind the institutional advantages of district courts.” Young, 811 F.3d at 598–99 (first quoting United States v. Tutty, 612 F.3d 128, 131 (2d Cir. 2010); then quoting United States v. Chu, 714 F.3d 742, 746 (2d Cir. 2013)).
Sampson challenges his sentence on four grounds. First, Sampson argues that the district court improperly imposed an additional 16-level enhancement to his offense level per
A. The 16-Level Enhancement
Section 2J1.2(c) of the Sentencing Guidelines instructs that if an individual commits an offense that involves obstructing a criminal investigation or prosecution, the sentencing court should apply § 2X3.1, the Guideline for “accessory after the fact.”
Because Sampson was convicted of endeavoring to obstruct Ahmad‘s criminal prosecution for mortgage fraud, the district court referred to § 2B1.1—the Guideline for “fraud and deceit“—to calculate what the offense level might have been for Ahmad‘s underlying mortgage fraud.
Sampson argues that “[t]here [was] no factual basis” for the district court “to conclude that Sampson knew or should have known Ahmad committed fraud, let alone a fraud” over the requisite $1.5 million threshold. Br. for Def.-Appellant 51. Because Sampson is challenging the district court‘s factual findings on this issue, we may vacate only if the district court committed clear error. See Ulbricht, 858 F.3d at 124. “To hold that a factual finding is ‘clearly erroneous,’ we must be left with the definite and firm conviction that a mistake has been committed.” Id. (internal quotation marks omitted). “Where there are two permissible views of the evidence, the [sentencing judge‘s] choice between them cannot be clearly erroneous.” Id. (internal quotation marks omitted).
Here, there was no “clear error” in the district court‘s determination that Sampson knew (or reasonably should have known) about Ahmad‘s mortgage fraud, as well as its value. First and foremost, the evidence suggests that Sampson was aware that New York State regulators were investigating Ahmad‘s business, and he knew that Ahmad had received inquiries from these regulators concerning forged signatures on some of Ahmad‘s documents. Sampson even advised Ahmad to submit an affidavit denying that Ahmad knew about the forged signatures, and told him that he “should let Prem [Ahmad‘s business partner] take the blame on this,” since “Prem didn‘t have anything to lose.” App‘x at 197. Furthermore, during a recorded conversation, Sampson strongly implied that he understood that Ahmad was committing fraud, and told Ahmad that he needed to use different language when conversing with him in the future so that Sampson would have plausible deniability. See Gov‘t App‘x at 76–77 (“[AHMAD:] ‘[F]or example, Nazir, he bought houses for me. Steve bought houses for me.’ . . . [SAMPSON:] ‘He didn‘t buy houses, no, no, no, Ed, he did not buy houses for you. You and Nazir, you‘re an investor [sic]. Nobody bought houses for you. You got to get that mindset out. Nobody bought houses for you.‘“). In addition, during his recorded conversation with Flagg, Sampson expressed familiarity with the government‘s publicly filed indictment in Ahmad‘s case, which alleged that Ahmad‘s fraud was worth over $50 million. Given the evidence that Sampson knew of Ahmad‘s wealth, and that he knew Ahmad was engaging in fraud to augment this wealth, we do not believe that it was “clear error” for the district court to conclude that, at the very least, Sampson “should have known” that Ahmad was defrauding individuals in an amount greater than $1.5 million.
B. The Abuse of Public Trust Enhancement
Section § 3B1.3 of the Guidelines instructs that if the defendant “abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense,” the sentencing court should increase the defendant‘s sentence by two levels. The district court held that this enhancement was warranted because “a lot of what [Sampson] did actually involved his status as an attorney.” App‘x at 1115.
“The determination of whether a defendant utilized a position of trust or special skill in a manner that significantly facilitated the commission or concealment of the offense is a question of fact reviewed for clear error.” United States v. Thorn, 446 F.3d 378, 388 (2d Cir. 2006). Here, the district court did not clearly err in determining that Sampson utilized his “special skill[s]” as an attorney to “significantly facilitate[]” the commission of the offense. Comment 4 to § 3B1.3 defines “special skill” as “a skill not possessed by members of the general public and usually requiring substantial education, training, or licensing,” and lists “lawyers” as a class of individuals possessing a “special skill.” The district court determined that Sampson relied on his skills as an attorney in his endeavors to obstruct justice, including: (1) his knowledge of “how criminal cases developed,” and at what point in the investigatory process “witnesses would be identified“; (2) his knowledge of how the USAO worked, so that he could give specific directions to Noel; (3) his knowledge of the criminal justice system so that he could instruct Flagg accordingly in terms of acquiring information; and (4) his “knowledge and relationships developed as an attorney in criminal cases” in determining which attorneys to hire for Ahmad‘s co-defendants. See App‘x at 1115–17. The fact that Sampson‘s offenses did not directly relate to his status as an attorney and could have been committed by a layperson is “immaterial,” because the dispositive question is simply whether Sampson‘s “special skills increase[d] his chances of succeeding or of avoiding detection.” United States v. Fritzson, 979 F.2d 21, 22 (2d Cir. 1992). We identify no “clear error” in the district court‘s answering this question in the affirmative.
C. Upward Deviation
A sentencing court “has broad latitude to impose either a Guidelines sentence or a non-Guidelines sentence.” Ulbricht, 858 F.3d at 123 (internal quotation marks omitted). The judge may depart upward from a Guidelines range as long as she “give[s] serious consideration to the extent of any departure from the Guidelines” and provides an “adequate[] expla[nation]” that “allow[s] for meaningful appellate review and . . . promote[s] the perception of fair sentencing.” Gall, 552 U.S. at 46, 50. She “must [also] make an individualized assessment based on the facts presented,” and consider the factors outlined in
In Sampson‘s case, the district court provided ample justification for its upward deviation, in a statement that spans nine full pages of the sentencing transcript. See App‘x at 1151–60. Among other things, the district court considered: (1) Sampson‘s embezzlement, which the district court believed was time-barred from prosecution but could nonetheless factor into the analysis as pertaining to Sampson‘s “history“;18 (2) the fact that Sampson breached both the trust of the New York State Bar and the New York State Supreme Court; (3) Sampson‘s failure to observe his suspension from the Bar even after his conviction and while he was awaiting sentencing; and (4) Sampson‘s abuse of his role as a state senator to obstruct regulatory investigations of Ahmad‘s businesses. The district court ultimately concluded that “[t]here has to be a sense that we give to the public that we are going to safeguard the integrity of our system. . . . That we will hold our public officials to a higher standard, that we will hold our attorneys to a higher standard.” Id. at 1159–60. This explanation is far more than the “brief statement of reasons” that generally suffices to enable appellate review of an upward departure, United States v. Cavera, 550 F.3d 180, 193 (2d Cir. 2008) (en banc), and because we cannot second guess the district court‘s weighing of the relevant sentencing factors, see United States v. Romano, 794 F.3d 317, 339 (2d Cir. 2015), we reject Sampson‘s argument that the district court failed adequately to justify its upward deviation.
D. Unwarranted Disparities
Finally, Sampson argues that there is an unwarranted disparity between his sentence and the sentence of former New York State Senator Dean Skelos (“Skelos“), who—in a completely unrelated case—was convicted on eight corruption counts.19 This argument is meritless. “Although ‘the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct’ is a factor district courts must consider” under
CONCLUSION
For the foregoing reasons, we AFFIRM the district court‘s January 27, 2017 judgment of conviction.
so in a manner that has the “natural and probable effect of” succeeding. United States v. Quattrone, 441 F.3d 153, 170–171 (2d Cir. 2006); see also United States v. Russell, 255 U.S. 138, 143 (1921) (defining an “endeavor” under