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United States v. Edward

United States Court of Appeals, Second Circuit

August 24, 2016

United States of America, Appellee
v.
Owen Edwards, AKA Ed, Defendant-Appellant, Lamont Muller, AKA Dell, AKA Cuz, Marcus Colvin, Donald Gatlin, AKA Jitt, Joseph Ellis, Lyndon Gordon, AKA Panama, Javon Praylou, AKA Joc, Rodney Morgan, AKA Red, AKA Rodney Barton, Wheeler Johnson, Jerimy Escalera, AKA DJ Gadget, Benjamin Gregor, Gerjuan Tyus, AKA Cali, Tiffany Harris, Amber Harris, Leticia Goosby, AKA Tit, Defendants.

          Argued: March 30, 2016

         On appeal from a judgment of the United States District Court for the District of Connecticut (Chatigny, J.) revoking supervised release, defendant challenges (1) the court's jurisdiction under 18 U.S.C. § 3583(i) to adjudicate violations formally charged after the scheduled expiration date of supervision, although here involving conduct closely related to the requisite pre-expiration charge and disclosed in connection therewith; and (2) the sufficiency of the evidence supporting the post-expiration charge of new criminal activity related to narcotics.

          Steven Y. Yurowitz, Newman & Greenberg LLP, New York, New York, for Defendant-Appellant.

          Marc H. Silverman, Assistant United States Attorney (Sarah P. Karwan, Sandra S. Glover, Assistant United States Attorneys, on the brief), for Deirdre M. Daly, United States Attorney for the District of Connecticut, New Haven, Connecticut, for Appellee.

          Before: SACK, RAGGI, DRONEY, Circuit Judges

          Reena Raggi, Circuit Judge:

         Defendant Owen Edwards was convicted in 2010 in the United States District Court for the District of Connecticut (Robert N. Chatigny, Judge) of conspiring to traffic in cocaine and marijuana. He now appeals from a judgment of that court revoking his supervised release on the 2010 conviction and sentencing him to 24 months' incarceration based on four supervision violations: (1) traveling outside the supervision district without authorization; (2) failing to respond truthfully to his probation officer's inquiries; (3) associating without permission with a convicted felon; and (4) committing another crime while on supervision, specifically, conspiracy to traffic drugs and launder drug proceeds. For the first time on appeal, Edwards challenges the district court's jurisdiction to adjudicate violations (2) through (4), claiming that they were impermissibly charged after the scheduled expiration of his supervision term. See 18 U.S.C. § 3583(i) (stating circumstances that permit revocation proceedings after expiration). In any event, he challenges the sufficiency of the evidence to support the fourth violation-the only one to which he did not plead guilty.

         To resolve this appeal, we need not-and, therefore, do not-decide the outer limits of a court's jurisdiction to entertain violation charges that are filed after a timely warrant or summons extends jurisdiction, but also after supervision concludes. We conclude only that where, as here, post-supervision charges involve conduct related to the requisite timely charge and the defendant is afforded adequate notice and opportunity to be heard, the district court is empowered to consider the related violations and to base revocation thereon. Because we further conclude that Edwards's sufficiency challenge fails on the merits, we affirm the challenged revocation judgment.

         I. Background

         A. The Underlying Crime of Conviction

         On September 2, 2010, Edwards pleaded guilty in the District of Connecticut to conspiracy to distribute and to possess with intent to distribute cocaine and marijuana in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 846. On November 18, 2010, the district court sentenced him to 24 months' imprisonment, to be followed by 36 months' supervised release. The 24-month prison sentence reflected a downward departure from the applicable 27-to-33-month Guidelines range, based on the district court's belief that Edwards's Criminal History Category of III "substantially over-represent[ed] the likelihood the defendant will commit other crimes." Gov't App'x 1. Edwards's betrayal of that trust underlies this appeal.

         B. The Initial Violation Charge

         Edwards's supervised release-which commenced on December 6, 2011, and was scheduled to conclude on December 4, 2014-was subject to various conditions, including, as relevant here, that he (1) not leave the supervision district without court or probation permission (Standard Condition 1);[1] (2) truthfully answer all probation inquiries (Standard Condition 3); (3) not associate with convicted felons without probation permission (Standard Condition 9); and (4) not commit any federal, state, or local offense (Mandatory Condition 1). See id. at 3.

         On June 17, 2014-approximately six months before the anticipated expiration of supervision-a warrant for Edwards's arrest was sought and obtained in the District of Connecticut based on his reported unauthorized travel to Hawthorne, California, on April 8, 2014, in violation of Standard Condition 1. The warrant petition reported that Edwards's presence in California was discovered in the course of a traffic stop, at which time he was found in possession of almost three-quarters of a million dollars, for which he gave conflicting explanations:

[O]n April 8, 2014, the SD/NY was contacted by the Hawthorne California Police Department and advised [that] Edwards has been initially detained in that city during a traffic stop. Mr. Edwards did not have the prior authorization from . . . probation to be in California on that date. In summary, Mr. Edwards was operating a rental vehicle [that] he was not authorized to operate. Upon obtaining the assistance of a K9 unit, police discovered a black duffle bag in the front passenger side of the floor board, which contained approximately $700, 000. Mr. Edwards denied knowledge of the content of the bag and continues to maintain this position. This matter remains under investigation. Upon being interviewed by the probation officer, Mr. Edwards advised that he traveled to California during April 7, 2014 to April 14, 2014, for his birthday and intended to attend the "Coachella Music Festival." Mr. Edwards claimed that he went to California without permission of the probation officer as he believed that the probation officer would not have provided him with permission to travel out of district on such short notice.

Id. at 10. Edwards was arrested in New York on July 30, 2014, released on his own recognizance, and directed to appear in Connecticut for a violation hearing on September 9, 2014.

         Before that appearance, on August 15, 2014, the U.S. Probation Office for the District of Connecticut (hereinafter "Probation") submitted to the court a report formally charging Edwards with violating Standard Condition 1, and providing further details as to the April 8, 2014 traffic stop and the events that followed:

[W]hile Mr. Edwards was operating a vehicle bearing California license 8N58898, he was pulled over during a traffic stop. Upon interviewing Mr. Edwards he was temporarily detained by police once it was determined that he was on federal supervised release. It was reported that Mr. Edwards immediately invoked his [F]ifth Amendment right without being admonished of a Miranda [w]arning. Police searched Mr. Edwards and the vehicle and uncovered an Avon Car Rental agreement under the names of Robert Lefny and Escabi Martinez, with an address out of Miami, Florida. Police contacted Avon Car Rental and the company indicated that they had no record of Mr. Edwards being an authorized driver of the vehicle. Police called Robert Lefny, one of the noted vehicle renters, and he initially denied that he knew who Mr. Edwards was and then immediately disconnected his telephone connection with police.
At that point, police requested the assistance of a K9 unit as they believed that Mr. Edwards may have been involved in trafficking narcotics. The K9 subsequently located a black duffle bag in the front passenger side of the floor board which was an indication that the K9 was giving a response to the odor of narcotics. When police removed the duffle bag from the vehicle [it] was found to have contained $712, 741 in cash, which was wrapped in food saver type vacuum sealed packages. There were no narcotics located in the vehicle. Mr. Edwards indicated to police that he did not know what was contained in the duffle bag until police had opened it.
On April 24, 2014, [U.S. Probation Officer ("USPO") Michael F.] Wasmer interviewed Mr. Edwards at the probation office (SD/NY). With regard to the unauthorized travel out of the Southern District of New York to California during April 7, 2014 to April 14, 2014, Mr. Edwards claimed that he traveled to California without permission of the probation officer for his birthday and in order to attend the "Coachella Music Festival." Mr. Edwards claimed that he went to California without permission as he believed that the probation officer would not have provided him with permission to travel out of district on such short notice. Mr. Edwards further claimed that he was operating a rented vehicle and was on his way to the music festival and he had assumed that the vehicle had been rented by a friend that he was staying [with] while in California. Mr. Edwards further stated to the USPO that he did not know that hundreds of thousands of dollars in cash [were] in a duffle bag hidden in the rental vehicle that he was operating. Mr. Edwards claimed that the money was likely associated with payments for performers at the Coachella Music Festival who[] would be making "walk through guest appearances" during the festival.

App'x 21-22. The report further stated that, after his April 24 Probation interview, Edwards secured counsel who requested that the confiscated $712, 741 be returned to his client.

         C. Edwards Pleads Guilty to the Initial Travel Violation

         On September 9, 2014, the district court confirmed that Edwards and his attorney had received and reviewed the August 15, 2014 violation report, as well as other documents made part of the court record, i.e., (1) the Hawthorne, California, Police Department's report on the April 8, 2014 traffic stop;[2] (2) a May 19, 2014 letter to the Orange County Regional Narcotics Suppression Program from California attorney Roger Jon Diamond, who sought return of the seized $712, 741 on behalf of Edwards; (3) a July 1, 2014 letter from Diamond to the FBI seeking return of the $712, 741, this time on behalf of both Edwards and "Joseph Reddick, " whom Diamond described as the owner of the seized currency; (4) a sworn statement signed by Edwards claiming that the seized currency belonged to him "and/or possibly Joseph Reddick, " Gov't App'x 74; and (5) a similar sworn statement by Reddick, who stated that because "[t]he issues are complicated, " he and Edwards would "resolve among ourselves who actually is entitled to the money, " id. at 73. Edwards confirmed for the court that he was, in fact, pursuing a claim for return of the seized currency.

         Defense counsel then stated that Edwards was prepared to admit the charged travel violation, but requested a short continuance to assemble "information [for] the Court regarding that money and that situation out there." App'x 28. Counsel explained that, although he hoped "to some degree to make the sentencing, as it should be, about the . . . admitted [travel] violation, " as to the seized currency, he did not want "to leave that elephant in the room out there, " noting, "I do have an explanation for that but I wanted to back it up with something." Id. The government agreed to a continuance, explaining that it also intended to present further evidence, including "documents associated with other trips that were taken." Id. at 29.

         Edwards then formally pleaded guilty to the unauthorized travel violation, whereupon the court adjourned the proceeding to October 1, 2014, so that the parties could offer "information relevant to determining the appropriate sanction." Id. at 33-35. At Edwards's request, the court also remanded him pending sentencing.

         D. The Government's September 30, 2014 Sentencing Memorandum

         On September 30, 2014, the government filed its sentencing memorandum, describing further conduct by Edwards that violated conditions of his supervised release.

         Specifically, the government reported that Edwards's violation of Standard Condition 1 was not limited to his April 2014 travel to California. Between January 2013 and April 2014, Edwards had made approximately 15 unauthorized trips to Alabama, California, Maryland, Nevada, New Jersey, North Carolina, and Washington, D.C., as evidenced by airline, train, car rental, and hotel records. Such travel had cost several thousands of dollars despite Edwards's reported unemployment.

         The government stated that Edwards had also violated Standard Condition 9 by his unauthorized association with Reddick, who had a 1993 federal felony conviction for drug trafficking.

         The government further asserted that Edwards had lied to Probation (as well as to the Hawthorne police) when he initially professed unawareness of the three-quarters of a million dollars found in the car he was operating on April 8, 2014, as evident from his subsequent assertion that the money was his.[3]

         Finally, the government maintained that the totality of reported circumstances pointed to "one, and only one, reasonable conclusion: that Edwards ha[d] resumed his illegal activities . . . most likely drug trafficking, money laundering, cash reporting violations, income tax violations, or gambling (and any combination of those activities)." Gov't App'x 31. Such criminal conduct would have violated Mandatory Condition 1 of supervision.

         The government did not urge that Edwards be formally charged with any further violations of supervision. Rather, it relied on the conduct detailed to argue that, even though Edwards's April 2014 travel to California was a Grade C violation that, by itself, triggered an advisory Guidelines range of only 5 to 11 months' imprisonment, see U.S.S.G. §§ 7B1.1(a)(3)(B), 7B1.4(a), the court should impose a sentence at the statutory maximum of 24 months, see 18 U.S.C. § 3583(e)(3). The government observed that, despite Edwards's receipt of a downward departure on his original sentence, he had "consistently" violated supervision conditions "in the most flagrant ways." Gov't App'x 32; see U.S.S.G. § 7B1.4 cmt. n.4 (stating that upward departure at revocation may be warranted where underlying sentence reflected downward departure). It maintained that, in these circumstances, only a 24-month sentence would provide adequate deterrence and promote respect for the law.

         E. The District Court's First Request for an Amended Probation Report

         On October 1, 2014, defense counsel confirmed that he had received and reviewed with Edwards the government's September 30, 2014 memorandum and attachments thereto. He urged that the court sentence Edwards within the applicable 5-to-11-month Guidelines range for a Grade C violation, and proffered various documents to dispel concern that Edwards had resumed drug trafficking. Among these documents was a notarized letter from Reddick, dated September 4, 2014, swearing that he was Edwards's "[b]acker" in high-stakes poker games. Gov't App'x 124. Defense counsel asserted that the "vast majority" of Edwards's travel was to play poker, with additional trips reflecting business travel with his girlfriend. App'x 51. Thus, while effectively admitting that Edwards had repeatedly violated the travel condition of his supervision, [4]counsel maintained that such multiple Grade C violations did not increase the recommended 5-to-11-month Guidelines range, see U.S.S.G. § 7B1.1(b), and that the government should not be allowed to urge the higher 18-to-24-month range applicable to "a Grade A violation [for commission of another crime] without going through the process of establishing a Grade A violation, " App'x 49.

         The district court determined that it "ma[d]e sense" for Probation to file an amended report addressing "what appears to be a pattern of violations" in order to afford Edwards "adequate notice of the charges that the Court really ought to be taking into account." Id. at 49-50. As the government explained, it did not yet have a "full picture" of Edwards's conduct, and its investigation was ongoing. Id. at 43. It reported that, since filing its September 30, 2014 memorandum, it had learned that the two names listed on the rental agreement for the car Edwards was driving on April 8, 2014, in fact belonged to one individual: Lefny Roberto Martinez-Escabi, a felon with drug-related convictions in New Jersey and North Carolina. To the extent that Edwards had associated with Martinez-Escabi, the government asserted that such conduct represented another supervised release violation. See id. at 42.

         Defense counsel opposed the court's proposal for an amended report, arguing that "what this hearing's about is a Grade C violation." Id. at 50. The district court disagreed, stating:

[O]n the face of it, we have an individual on supervised release who reports that he is unemployed and trying to find work; he offers no indication that he is leaving the district; and he is apprehended with approximately three quarters of a million dollars in cash in California in a vehicle alone; he claims he had no idea that there was any cash in the vehicle; and now he is seeking to recover the cash on the ground that it was actually his; and it turns out that he was apparently traveling more or less constantly across the country, which costs quite a bit of money, associated with convicted felons.
For me to proceed that this is simply a Grade C failure to notify of travel outside the district would be I think a clear breach of my responsibility as the presiding judge. . . .
I think this is a very serious matter. It's not just a Grade C matter, as far as I can tell. I think that we should have an amended report that provides fair notice of exactly what the probation office's concerns truly are and gives the defense adequate disclosure in the ...

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