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 ...