United States v. Leslie, No. 10-2994 (2d Cir. 2011)
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Defendant appealed from a judgment of the district court, following his guilty plea to conspiring to commit bank fraud in violation of 18 U.S.C. 1349. At sentencing, defendant argued that he was not responsible for the losses incurred during the time period he was incarcerated because his incarceration was evidence of his withdrawal from the conspiracy. The district court disagreed and attributed the actual losses incurred during the entire conspiracy to defendant when it calculated his Sentencing Guidelines range and sentenced defendant to 51 months imprisonment. On appeal, defendant argued that his incarceration was prima facie evidence that he withdrew from the conspiracy, which then shifted the burden to the government to prove the contrary. The court disagreed and held that the evidence before the sentencing court of defendant's incarceration; the nature of the bank fraud conspiracy that he formulated, led, and executed; and defendant's contact with a co-conspirator upon his release from prison supported the district court's finding that he did not withdraw from the conspiracy during his incarceration. Accordingly, the district court did not err in attributing the actual losses of the entire conspiracy to defendant.
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10-2994-cr United States v. Leslie 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2011 (Argued: September 13, 2011 Decided: October 3, 2011) Docket No. 10-2994-cr UNITED STATES OF AMERICA, Appellee, v. SADIKI KOMUNYAKA LESLIE, Defendant-Appellant.* Before: CALABRESI, WESLEY, and LYNCH, Circuit Judges. Appeal from a judgment of the United States District Court for the District of Connecticut (Thompson, C.J.), entered on July 12, 2010, sentencing defendant to 51-months imprisonment. Defendant pled guilty to conspiring to commit bank fraud. At sentencing, the district court determined that defendant was responsible for actual losses incurred during the entire period of the charged conspiracy. Defendant argues that the district court should not have attributed any losses to him after he was incarcerated because his incarceration constituted a withdrawal from the conspiracy. We hold that the district court did not err in calculating the appropriate Sentencing Guidelines range * The Clerk of Court is directed to amend the caption as set forth above. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 because defendant did not establish that he withdrew from the conspiracy. AFFIRMED. WILLIAM T. KOCH, JR., Koch and Koch, Lyme, CT, for Defendant-Appellant. DAVID T. HUANG, Assistant United States Attorney (Sandra S. Glover, Assistant United States Attorney, on the brief), for David B. Fein, United States Attorney for the District of Connecticut, New Haven, CT, for Appellee. PER CURIAM: Defendant-Appellant Sadiki Komunyaka Leslie appeals 21 from a July 12, 2010 judgment of the United States District 22 Court for the District of Connecticut (Thompson, C.J.), 23 following his guilty plea to conspiring to commit bank fraud 24 in violation of 18 U.S.C. § 1349. 25 argued that he was not responsible for the losses incurred 26 during the time period he was incarcerated because his 27 incarceration was evidence of his withdrawal from the 28 conspiracy. 29 actual losses incurred during the entire conspiracy to 30 Leslie when it calculated his Sentencing Guidelines range. 31 The district court sentenced Leslie to 51-months At sentencing, Leslie The district court disagreed and attributed the 2 1 imprisonment. On appeal, Leslie argues that his 2 incarceration was prima facie evidence that he withdrew from 3 the conspiracy, which then shifted the burden to the 4 government to prove the contrary. 5 the defendant failed to meet his burden of proving 6 affirmative conduct necessary to show withdrawal. We disagree and find that 7 Background 8 Leslie devised and led a conspiracy to commit bank 9 fraud in the greater Bridgeport, Connecticut area beginning 10 in early 2004. Leslie and his co-conspirators took 11 advantage of a flaw in the Bridgeport-based People s Bank s 12 automated teller machine ( ATM ) system. 13 obtained checks associated with closed bank accounts or open 14 accounts with little or no balance. 15 those checks at ATMs with ATM cards associated with open 16 bank accounts, knowing that the checks would not be honored 17 by the bank from which the check was issued. 18 fraudulently deposited checks became available for 19 withdrawal before People s Bank could detect the fraud. 20 During that period, Leslie and his co-conspirators withdrew 21 the ATM maximum daily limit from the respective accounts and 22 made additional cash withdrawals when they used the ATM card 3 They first They then deposited The 1 for purchases. Leslie devised the scheme and taught others 2 how to execute it. 3 join the conspiracy. Leslie s students recruited others to 4 Leslie was arrested on state charges and pled guilty in 5 Connecticut Superior Court for bank fraud activity from 2004 6 to April 2005. 7 April 2005 to June 2005, he continued to participate in the 8 bank fraud conspiracy. 9 serving his four year state prison sentence. While Leslie remained free on bond from On July 1, 2005, Leslie began He was 10 released from prison on March 16, 2007, but was incarcerated 11 again on July 24, 2007 for a parole violation. 12 Leslie s incarceration, his co-conspirators continued the 13 scheme. 14 the federal government charged him with the subject federal 15 crime covering the period April 2005 to December 2007. 16 During In 2009, Leslie was transferred to federal custody; As part of the plea agreement, the parties agreed that 17 the total actual loss from the conspiracy was $310,475 and 18 that the total amount of intended loss from the scheme was 19 $509,447. 20 responsible for $60,400 the amount of losses from the start 21 of the charged conspiracy in April 2005 to his incarceration 22 on July 1, 2005. At sentencing, Leslie argued that he was only This loss amount would have resulted in a 4 1 six-level enhancement under the Guidelines, see U.S.S.G. § 2 2B1.1(b)(1)(D), and an imprisonment range of 27 33 months. 3 The district court rejected Leslie s argument that he had 4 withdrawn from the conspiracy when he was incarcerated. 5 Accordingly, the district court agreed with the government 6 that the intended loss from the entire conspiracy was 7 attributable to Leslie, resulting in a fourteen-level 8 enhancement under the Guidelines. 9 2B1.1(b)(1)(H). See U.S.S.G. § The district court, however, determining 10 that it was more appropriate to assess only the actual 11 losses to Leslie, calculated an imprisonment range of 51 to 12 63 months. 13 by the district court. Leslie now appeals the 51-month sentence imposed 14 Discussion 15 Leslie argues that the district court erred when it 16 attributed losses to him that were incurred as a result of 17 the conspiracy after he was incarcerated. 18 sentence for reasonableness, which is akin to review for 19 abuse of discretion, under which we consider whether the 20 sentencing judge exceeded the bounds of allowable 21 discretion, committed an error of law in the course of 22 exercising discretion, or made a clearly erroneous finding 5 We review a 1 of fact. 2 Cir. 2007) (internal quotation marks and ellipses omitted). 3 A finding is clearly erroneous when although there is 4 evidence to support it, the reviewing court on the entire 5 evidence is left with the definite and firm conviction that 6 a mistake has been committed. 7 F.3d 58, 63 (2d Cir. 2010) (quoting United States v. Lin 8 Guang, 511 F.3d 110, 122 (2d Cir. 2007)). 9 United States v. Williams, 475 F.3d 468, 474 (2d United States v. Markle, 628 On appeal, Leslie argues that his incarceration was 10 prima facie evidence that he withdrew from the conspiracy, 11 which then shifted the burden to the government to prove 12 that he remained in the conspiracy. 13 squarely address this argument in the sentencing context.1 14 However, our case law counsels that, notwithstanding his 15 incarceration, the burden should remain on Leslie to prove 16 that he affirmatively withdrew from the conspiracy. 17 failed to meet that burden. 18 This Court has yet to Leslie As an initial matter, it is well-settled that 1 In United States v. Borelli, 336 F.2d 376 (2d Cir. 1964), we briefly addressed the argument in the context of a defendant challenging his conviction for conspiring to violate the Narcotic Drugs and Import and Export Act. Although we did not decide the issue, we found the proposition that confinement is sufficient to constitute withdrawal unless the Government comes forward with evidence of continued participation difficult to reconcile with Supreme Court precedent. Id. at 389. 6 1 withdrawal from a conspiracy is an affirmative defense for 2 which the defendant bears the burden of proof at trial. 3 United States v. Pizzonia, 577 F.3d 455, 466 (2d Cir. 2009); 4 United States v. Flaharty, 295 F.3d 182, 192 (2d Cir. 2002). 5 Mere cessation of the conspiratorial activity by the 6 defendant is not sufficient to prove withdrawal. 7 States v. Eppolito, 543 F.3d 25, 49 (2d Cir. 2008); 8 Flaharty, 295 F.3d at 192. 9 that he performed some act that affirmatively established United The defendant must also show 10 that he disavowed his criminal association with the 11 conspiracy, either the making of a clean breast to the 12 authorities, or communication of the abandonment in a manner 13 reasonably calculated to reach co-conspirators. 14 543 F.3d at 49 (citations and internal quotation marks 15 omitted). 16 evidence of withdrawal, his participation in a conspiracy is 17 presumed to continue until the last overt act by any of the 18 conspirators. 19 Cir. 1999) (quoting United States v. Greenfield, 44 F.3d 20 1141, 1150 (2d Cir. 1995)). 21 Eppolito, Unless a conspirator produces affirmative United States v. Diaz, 176 F.3d 52, 98 (2d We find no reason why placement of the burden should be 7 1 any different in the sentencing context.2 2 already noted, in another sentencing context, that 3 incarceration does not create a rebuttable presumption of 4 withdrawal from a conspiracy. 5 F.3d 123, 136 (2d Cir. 2008) (per curiam). 6 district court used the post-2004 Sentencing Guidelines 7 because it found that the defendant s involvement in the 8 conspiracy continued beyond his arrest and incarceration in 9 2003. Id. Indeed, we have United States v. Massino, 546 In Massino, the On appeal, we rejected Massino s argument that 10 the government had to rebut the presumption that he had 11 withdrawn from the conspiracy due to his incarceration. 12 We see no difference between Massino s argument and 13 Leslie s. 14 incarceration, the burden remained on Leslie to prove that 15 he withdrew from the conspiracy. Id. Accordingly, notwithstanding Leslie s 16 Leslie argues that imprisonment may be evidence of an 17 affirmative act of withdrawal from a conspiracy; we agree. 18 But while arrest or incarceration may constitute a 2 Other circuits have similarly held that the defendant should bear the burden of proving withdrawal from the conspiracy at sentencing. See United States v. Zimmer, 299 F.3d 710, 723 (8th Cir. 2002); United States v. Schorovsky, 202 F.3d 727, 729 (5th Cir. 2000); United States v. Dale, 991 F.2d 819, 854 (D.C. Cir. 1993); United States v. Watford, 894 F.2d 665, 670 (4th Cir. 1990). 8 1 withdrawal from a conspiracy, it does not follow that in 2 every instance it must. 3 (internal quotation marks omitted). 4 evidence of imprisonment during a conspiracy is merely a 5 relevant fact that entitles the defendant to a jury 6 instruction on withdrawal. 7 at 98. 8 withdrawal in light of the length and location of the 9 internment, the nature of the conspiracy, and any other Flaharty, 295 F.3d at 192 In the trial context, See id. at 193; Diaz, 176 F.3d The jury decides whether imprisonment constitutes a 10 available evidence. United States v. Panebianco, 543 F.2d 11 447, 454 n.5 (2d Cir. 1976). 12 must find a withdrawal if the government does not prove that 13 the defendant continued in the conspiracy after 14 imprisonment.3 15 judge to make a similar finding at sentencing. 16 remains on the defendant to present affirmative evidence We have never held that a jury For the same reasons we will not require a 3 The burden In United States v. Morales, 185 F.3d 74 (2d Cir. 1999), this Court held that no rational jury could have found, beyond a reasonable doubt, that a criminal enterprise continued for the duration charged because, inter alia, the government did not present sufficient evidence to show that the enterprise continued during the seven-year period that the defendants were incarcerated. Id. at 81. That holding, however, was not based solely on the government s failure to present sufficient evidence. Rather, our holding was motivated by the dearth of evidence of activity during the incarceration and the length of the incarceration. Id. Morales, therefore, is distinguishable and does not support Leslie s argument here. 9 1 that he withdrew from the conspiracy. The defendant s 2 imprisonment is but one fact to consider in deciding whether 3 withdrawal occurred. 4 Here, the district court did not err in determining 5 that Leslie failed to meet his burden of proving that he 6 withdrew from the bank fraud conspiracy. 7 imprisonment did not, as a matter of law, constitute a 8 withdrawal from the conspiracy. 9 Salameh, 152 F.3d 88, 155 (2d Cir. 1998) (per curiam). 10 conceded at sentencing that he had no evidence to offer 11 other than the mere fact of his incarceration to suggest 12 that he withdrew from the conspiracy. 13 other evidence of withdrawal, Leslie s imprisonment was 14 tantamount to a resignation from a criminal enterprise, 15 [which,] standing alone, does not constitute withdrawal. 16 United States v. Berger, 224 F.3d 107, 118 (2d Cir. 2000).4 17 Leslie devised the bank fraud scheme, executed it, and 4 Leslie s See United States v. He In the absence of any Other circuits have similarly held that incarceration alone is not sufficient evidence of an affirmative act of withdrawal from a conspiracy. See United States v. Fishman, 645 F.3d 1175, 1196 97 (10th Cir. 2011); United States v. Robinson, 390 F.3d 853, 882 (6th Cir. 2004); United States v. Benabe, No. 09-1190, 2011 WL 3624961, at *12 (7th Cir. Aug. 18, 2011); United States v. Lopez, 403 F. App x 362, 372 (11th Cir. 2010); Untied States v. Zamudio-Orosco, 405 F. App x 83, 84 85 (8th Cir. 2010). 10 1 taught it to others who continued to use the scheme to steal 2 thousands of dollars during Leslie s incarceration. 3 never told the authorities how to stop the conspiracy nor 4 did he inform the authorities or his co-conspirators that he 5 had abandoned the conspiracy. 6 Accordingly, the district court did not err in concluding 7 that Leslie remained in the conspiracy during his 8 imprisonment while his co-conspirators continued to defraud 9 the bank. 10 Leslie See Eppolito, 543 F.3d at 49. See Diaz, 176 F.3d at 98. Leslie s reliance on cases from the Third Circuit to 11 support his burden-shifting argument is misplaced. 12 cases do not address incarceration at all. 13 States v. Steele, 685 F.2d 793 (3d Cir. 1982); United States 14 v. Lowell, 649 F.2d 950 (3d Cir. 1981). 15 Third Circuit cases support our view that mere cessation of 16 conspiratorial activity is not sufficient to constitute 17 withdrawal from a conspiracy. 18 803 804; Lowell, 649 F.2d at 955. 19 Those See United Furthermore, both See Steele, 685 F.2d at Finally, there is evidence in the record that Leslie 20 did not withdraw from the conspiracy during his 21 incarceration. 22 an unindicted co conspirator who told Leslie that the bank While out of prison in 2008, Leslie met with 11 1 fraud scheme was still ongoing. See Flaharty, 295 F.3d at 2 193. 3 incarceration; the nature of the bank fraud conspiracy that 4 he formulated, led, and executed; and Leslie s contact with 5 a co-conspirator upon his release from prison support the 6 district court s finding that Leslie did not withdraw from 7 the conspiracy during his incarceration. 8 district court did not err in attributing the actual losses 9 of the entire conspiracy to Leslie. The evidence before the sentencing court of Leslie s Accordingly, the 10 11 12 13 Conclusion For the foregoing reasons, the judgment of the district court is hereby AFFIRMED. 12
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