United States v. Dupes, No. 05-5522 (2d Cir. 2008)

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05-5522-cr(L) United States v. Dupes 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2007 (Argued: November 19, 2007 Decided: January 9, 2008) Docket Nos. 05-5522-cr(L) 06-1337-cr(CON) -------------------------------------------------x UNITED STATES OF AMERICA, Appellee, -- v. -ROBERT H. DUPES and HURSON BELIZAIRE*, Defendants-Appellants. -------------------------------------------------x B e f o r e : WALKER and CALABRESI, Circuit Judges, and KEENAN, District Judge.** Defendant appeals from a sentence imposed in the United 22 States District Court for the Southern District of New York 23 (Pauley, Judge) following a guilty plea to securities fraud and 24 conspiracy to commit securities fraud, including an order of 25 restitution pursuant to the Mandatory Victim Restitution Act and 26 special conditions of supervised release relating to defendant s 27 prior sex offenses. 28 AFFIRMED 29 30 31 * 06-1337-cr(CON)CLOSED-withdrawn by stipulation filed May 30, 2006. ** The Honorable John F. Keenan, United States District Judge for the Southern District of New York, sitting by designation. STEVEN D. FELDMAN, Assistant United States Attorney (Katherine Polk Failla, Assistant United States Attorney, on the brief), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, N.Y., for Appellee. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 DAVID SAMEL, New York, N.Y., for Defendant-Appellant. KEENAN, District Judge: Introduction 16 This is an appeal from a sentence imposed by William H. 17 18 Pauley III, United States District Judge for the Southern 19 District of New York. 20 fraud and conspiracy to commit securities fraud, the district 21 court sentenced defendant-appellant Robert H. Dupes to prison for 22 thirty-eight months, to be followed by three years of supervised 23 release. 24 to his victims in an amount determined by the court pursuant to 25 the Mandatory Victim Restitution Act. 26 that the imposition of special conditions of supervised release 27 relating to his prior sex offenses exceeded the district court s 28 statutory authority and violated the Double Jeopardy Clause and 29 the Tenth Amendment. 30 restitution under the Sixth Amendment. 31 below, we affirm the sentence imposed by the district court. Following a guilty plea to securities The court also ordered Dupes to make full restitution On appeal, Dupes claims Dupes also challenges his order of 2 For the reasons stated Background 1 Around June of 1999, Dupes and a co-conspirator founded 2 3 a company called Internet Holdings.com ( Internet Holdings ), a 4 Delaware limited liability company headquartered in New York. 5 Internet Holdings was purportedly organized to raise capital to 6 acquire privately held companies and take them public through 7 initial public offerings and other transactions. 8 company s establishment until September 2000, it issued 9 securities to investors from its Manhattan offices through From the 10 private placement memoranda and other solicitations that 11 contained material misrepresentations. 12 Chief Operating Officer of the company, and his co-conspirators 13 converted nearly all of the proceeds of the securities offering 14 to their own personal use, defrauding twenty-four investors of 15 approximately $765,000. Dupes, the President and Dupes was arrested in Colorado in August of 2000 on 16 17 unrelated federal charges of interstate travel to have sex with a 18 minor. 19 an investigation of him in New York. 20 warrant at his Manhattan apartment and seized a home computer 21 containing child pornography. 22 child pornography and received a sentence of twenty-seven months 23 imprisonment. 24 his Colorado arrest for interstate travel to have sex with a Following that arrest, the federal government initiated Officials executed a search Dupes pled guilty to possession of He also pled guilty to the charges stemming from 3 1 minor and received a sentence of twelve months imprisonment, to 2 run consecutively with the child pornography sentence. 3 October of 2003, Dupes was released from prison and began serving 4 a term of supervised release. In 5 In May of 2004, Dupes and five of his co-conspirators 6 in the Internet Holdings scheme were charged by indictment with 7 securities fraud and conspiracy to commit securities fraud. Dupes 8 pled guilty to both counts. 9 hearing, Judge Pauley sentenced Dupes to thirty-eight months At an October 2005 sentencing 10 imprisonment to be followed by three years of supervised release, 11 running concurrently on both counts.1 12 mandatory and standard conditions of supervised release, the 13 court imposed several special conditions relating to Dupes s 14 prior sex offenses. 15 from the presentence report that the probation office had 16 prepared. 17 offense-specific evaluation and participate in a sex offender 18 treatment/and or [sic] mental health treatment program approved 19 by the probation officer. 20 right of confidentiality in any records for mental health 1 In addition to the The court adopted these special conditions Special Condition 8 required Dupes to undergo a sex- It further required him to waive his It could be argued that this appeal highlights the old adage that no good deed remains unpunished. The district court imposed a sentence below the advisory Guidelines range of fiftyseven to seventy-one months because of Dupes s distinguished record of military service, because the delay in prosecuting him allowed sex offenses committed after the Internet Holdings conspiracy to enhance his Guidelines range, and because Dupes s co-conspirator, the architect of several fraudulent securities schemes, received only a thirty-seven month sentence. 4 1 assessment and treatment imposed as a consequence of this 2 judgment to allow the probation officer to review the defendant s 3 course of treatment and progress with the treatment provider. 4 Special Condition 9 directed Dupes to 5 6 7 8 9 10 register with the state sex offender registration agency in any state in which [he] resides, is employed, carries on a vocation or is a student, as directed by the probation officer. The defendant shall adhere to the registration and notification procedures of the state in which [he] resides. 11 The presentence report had limited the registration requirement 12 with the words if applicable. 13 Dupes from having deliberate contact with any child under the age 14 of seventeen and required him to stay more than one hundred feet 15 from places primarily used by children such as schoolyards, 16 playgrounds and arcades. 17 a computer to access child pornography or to communicate with 18 other individuals or groups for the purpose of promoting sexual 19 relations with children, and provided for monitoring of Dupes s 20 computer usage by the probation office. 21 district court informed Dupes that it had crafted this sentence 22 in an effort to take account of the good things that you have 23 done and also to protect the community from the bad things that 24 you have done. 25 Special Condition 10 barred Special Condition 11 forbade the use of At sentencing, the The district court also imposed restitution against 26 Dupes in the amount of $765,000, the amount recommended in the 27 presentence report as the total loss caused by the Internet 5 1 Holdings scheme to its twenty-four victim-investors. 2 counsel confirmed at an earlier hearing that he had reviewed the 3 presentence report with his client and had no objections to the 4 factual matters set forth therein. 5 never objected to the special conditions of supervised release or 6 the amount of restitution recommended in the presentence report. 9 Prior to this appeal, Dupes Discussion 7 8 Dupes s Dupes challenges his special conditions of supervised release on three grounds. First, he claims that the imposition 10 of special conditions of supervised release relating to his prior 11 sex offenses violates the Double Jeopardy Clause. 12 asserts that the requirement that he waive therapeutic 13 confidentiality in connection with court-ordered sex offender 14 treatment exceeds the sentencing court's authority under 18 15 U.S.C. § 3583(d) and section 5D1.3(b) of the U.S. Sentencing 16 Guidelines ( U.S.S.G. ). 17 requiring his registration as a sex offender with state agencies 18 violates the Tenth Amendment. 19 constitutionality of his restitution order, claiming that the 20 Mandatory Victim Restitution Act ( MVRA ) violates the Sixth 21 Amendment under the principles established in the Apprendi-Ring- 22 Booker-Blakely line of cases. 23 supplemental pro se brief raising various other challenges to his 24 conviction and sentence. Second, he Third, he argues that the condition Dupes also attacks the Finally, Dupes has submitted a 6 1 2 I. Conditions of Supervised Release 3 A. Standard of Review 4 The propriety of conditions of supervised release are 5 judged by an abuse of discretion standard. United States v. 6 Brown, 402 F.3d 133, 136 (2d Cir. 2005). 7 court enjoys broad discretion in imposing these conditions, its 8 discretion is not untrammeled and our Court will carefully 9 scrutinize unusual and severe conditions. United States v. Although the district 10 Myers, 426 F.3d 117, 124 (2d Cir. 2005) (internal citations and 11 quotation marks omitted). 12 of discretion. See United States v. Johnson, 446 F.3d 272, 277 13 (2d Cir. 2006). 14 that presents an issue of law is generally reviewed de novo, id., 15 but we review Dupes s claims for plain error because he failed to 16 raise them before the district court at sentencing. United States 17 v. Sofsky, 287 F.3d 122, 125 (2d Cir. 2002).2 18 error standard, before an appellate court can correct an error 2 Any error of law constitutes an abuse A challenge to conditions of supervised release Under the plain Dupes argues that we should relax the plain error standard of review as we did in United States v. Sofsky, 287 F.3d 122, 125 (2d Cir. 2002). In Sofsky, we noted that in the sentencing context there are circumstances that permit us to relax the otherwise rigorous standards of plain error review to correct sentencing errors. Id. We applied plain error standards less rigorously because the presentence report failed to give the defendant notice that the condition of supervised release might be imposed. Id. at 125-26. In this case, the presentence report, which Dupes reviewed with counsel, recommended the conditions to which he failed to object and now challenges on appeal. We see no circumstances warranting the relaxation of the plain error standard in this case. 7 1 not raised below, there must be (1) an error, (2) that is plain 2 and (3) that affects substantial rights. 3 met, an appellate court may then exercise its discretion to 4 correct the error, but only if it seriously affects the fairness, 5 integrity or public reputation of judicial proceedings. See id. 6 at 125 n.2 (citing Jones v. United States, 527 U.S. 373, 389 7 (1999)). 8 9 10 B. If these conditions are Merits 1. The Double Jeopardy Claim The Double Jeopardy Clause protects a defendant from 11 successive punishments for the same criminal offense. United 12 States v. Dixon, 509 U.S. 688, 696 (1993). 13 district court violated the prohibition against double jeopardy 14 by imposing a punishment relating to the two sex offenses for 15 which he previously had been sentenced. 16 challenged conditions of supervised release are an authorized 17 punishment for Dupes s securities fraud conviction, not a 18 successive punishment for his prior sex offense convictions. 19 Dupes claims that the We cannot agree. The The district court has broad authority pursuant to 18 20 U.S.C. § 3583(d) to impose any condition of supervised release 21 that it considers to be appropriate, provided such condition 22 ;4107;4108;4107;4108is reasonably related to certain statutory 23 sentencing factors listed in section 3553(a)(1) and (a)(2) of 24 that title, involves no greater deprivation of liberty than is 25 reasonably necessary to implement the statutory purposes of 8 1 sentencing, and is consistent with pertinent Sentencing 2 Commission policy statements. 18 U.S.C. § 3583(d); Myers, 426 3 F.3d at 123-124. 4 which conditions of supervised release must be reasonably related 5 are also set forth in U.S.S.G. § 5D1.3(b)(1): The factors of section 3553(a)(1) and (a)(2) to (A) the nature and circumstances of the offense and the history and characteristics of the defendant; (B) the need for the sentence imposed to afford adequate deterrence to criminal conduct; (C) the need to protect the public from further crimes of the defendant; and (D) the need to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. 6 7 8 9 10 11 12 13 14 15 U.S.S.G. § 5D1.3(b)(1);4152;4152. 16 release need only be reasonably related to any one of these 17 factors. United States v. Abrar, 58 F.3d 43, 46 (2d Cir. 1995). 18 A condition of supervised It was within the district court s authority to impose 19 the challenged special conditions as part of Dupes s sentence for 20 his securities fraud offense. 21 attend sex offender treatment, register as a sex offender, keep a 22 distance from children and the places where they usually 23 congregate, and refrain from using the internet to download child 24 pornography or promote sexual relations with children is 25 reasonably related to Dupe s history and characteristics as a sex 26 offender, his need for treatment, and the public s need for 27 protection from him. 28 excessively restrictive nor inconsistent with the statutory 29 purposes of sentencing. Each of the conditions that Dupes Moreover, the conditions are neither We have previously found section 3583(d) 9 1 to authorize the imposition of similar conditions following a 2 conviction for a non-sex offense, provided such conditions are 3 not overly broad or vague. 4 F.3d 79, 84-86 (2d Cir. 2001), we stated that a district court 5 had authority to require a defendant, following his conviction 6 for bank larceny, to undergo sex offender treatment and to stay 7 away from places where children typically congregate, based on 8 the defendant s prior conviction for sexually abusing a child.3 9 Similarly, in United States v. Rosario, 386 F.3d 166 (2d Cir. 10 2004), we affirmed a special condition requiring sex offender 11 registration following the defendant s conviction for a drug- 12 related offense where he had previously been convicted of 13 sexually abusing a child. 14 Dupes are a lawful punishment for his current securities fraud 15 offense, the conditions cannot be considered a successive 16 punishment for his prior sex offense convictions and there is no 17 Double Jeopardy violation. Accord United States v. Sines, 303 18 F.3d 793, 801 (7th Cir. 2002). In United States v. Peterson, 248 Because the conditions imposed upon 19 2. Waiver of Therapeutic Confidentiality 20 In connection with the requirement that Dupes attend a 21 sex offender and/or mental health treatment program approved by 22 his probation officer, the district court ordered him to waive 3 In Peterson, we nonetheless vacated the conditions on grounds that they delegated too much discretion to the probation officer and contained ambiguous language making them potentially over-broad. 248 F.3d at 84-86. These infirmities are not present in the conditions imposed upon Dupes. 10 1 therapeutic confidentiality in any records for mental health 2 assessment and treatment . . . to allow the probation officer to 3 review the defendant s course of treatment and progress with the 4 treatment provider. 5 discretion by ordering this waiver pursuant to section 3583(d) 6 because it is not reasonably related to his rehabilitation or the 7 protection of the public. 8 without the assurance of confidentiality, Dupes asserts, and the 9 public will not be protected by requiring him to undergo Dupes claims that the court abused its Treatment will not be effective 10 ineffective treatment. See generally Jaffee v. Redmond, 518 U.S. 11 1 (1996) (recognizing the psychotherapist-patient privilege and 12 noting that effective psychotherapy depends upon 13 confidentiality). 14 While it could be argued that the waiver condition may 15 retard Dupes s treatment, it very well may advance his treatment 16 by allowing the probation officer to monitor Dupes s progress 17 and, if necessary, make adjustments to his court-ordered therapy 18 program. See United States v. Lopez, 258 F.3d 1053, 1057 (9th 19 Cir. 2001) (upholding a condition requiring release of records of 20 mental health evaluations and treatment because [t]he sentencing 21 judge could well conclude that disclosure to the court and to the 22 probation officer of information about [defendant s] status was 23 necessary for successfully supervising his reintegration into 24 society ). 25 information about Dupes s treatment could reasonably further 11 Moreover, allowing the probation officer access to 1 public safety regardless of whether the treatment is effective or 2 not. Cf. United States v. Cooper, 171 F.3d 582, 587 (8th 3 Cir.1999) (upholding condition granting probation officer full 4 access to defendant s psychiatric and medical records because it 5 reasonably amplifie[d] the standard condition of answering the 6 probation officer s questions truthfully). 7 conclude that the district court s determination that the waiver 8 reasonably relates to Dupes s rehabilitation and the public 9 safety is an abuse of discretion seriously affecting the 10 fairness, integrity or public reputation of the judicial 11 proceedings. 12 3. 13 We have recognized that a federal court in the exercise Therefore, we cannot The Tenth Amendment Claim 14 of its considerable discretion to impose sentence may not 15 transgress the principles of federalism inherent in the Tenth 16 Amendment. United Stated v. Rosario, 386 F.3d 166, 171 (2d Cir. 17 2004) (citing United States v. A-Abras, Inc., 185 F.3d 26, 33 (2d 18 Cir. 1999)). 19 release requiring registration as a sex offender with state 20 registration agencies where applicable does not violate the 21 Tenth Amendment because it merely required the defendant to meet 22 his state-imposed obligations and involved no undue intrusion 23 upon state authority. Id. at 172. 24 the words where applicable in the condition requiring Dupes s 25 registration creates no conflict with federalism. 12 In Rosario, we held that a condition of supervised In this case, the absence of The condition 1 orders Dupes to register as directed by his probation officer and 2 to adhere to the registration and notification procedures of the 3 state in which [he] resides. 4 the Government, that Dupes must notify the relevant agencies of 5 his status as a convicted sex offender. 6 obligation upon state agencies to maintain Dupes on their 7 registries if applicable state law would not so require. 8 state has no sex offender registration agency, the condition 9 obviously would not require that state to set one up just for We interpret this to mean, as does The condition imposes no If a 10 Dupes. Because the condition merely directs Dupes to take action 11 to register and demands no action of any state beyond that which 12 the state has elected to undertake whenever a sex offender 13 complies with its registration laws, the condition does not run 14 afoul of the Tenth Amendment. See id. 15 II. The Sixth Amendment Challenge to the Restitution Order 16 The MVRA makes full restitution mandatory for certain 17 crimes, including securities fraud, 18 U.S.C. § 3663A, and 18 requires a court to determine the total amount of loss to each 19 victim. Id. § 3664 (f)(1)(A). 20 Amendment, as interpreted in the line of cases from Apprendi 21 through Booker, requires that the amount of loss serving as the 22 basis of a restitution order be found by a jury beyond a 23 reasonable doubt or admitted by the defendant. 24 held in United States v. Reifler, 446 F.3d 65, 116 (2d Cir. 2006) 25 that there is no constitutional requirement that the facts 13 Dupes argues that the Sixth We have already 1 needed for the district court s fashioning of a restitution order 2 be found by a jury beyond a reasonable doubt. 3 that Reifler squarely rejected his Sixth Amendment claim but 4 urges us to reconsider our holding in that case. Pet r Br. at 16. 5 As no intervening Supreme Court decision has called our decision Dupes concedes 6 in Reifler into doubt, we are without authority to overrule it. 7 See Veltri v. Bldg. Serv. 32B-J Pension Fund, 393 F.3d 318, 8 327 (2d Cir. 2004). 9 10 Conclusion We have considered the additional challenges to his 11 conviction and sentence that Dupes has raised in a pro se brief 12 and find them to be without merit. 13 the district court is affirmed in all respects. 14 15 16 14 For the reasons stated above,

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