United States v. Fernandes , 685 F. App'x 63 ( 2017 )

16-227
United States v. Fernandes
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION ‘SUMMARY ORDER’). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 3rd day of April, two thousand seventeen.
5
6 PRESENT: DENNIS JACOBS,
7 CHRISTOPHER F. DRONEY,
8 Circuit Judges,
9 TIMOTHY C. STANCEU,
10 Chief Judge, U.S. Court of Int’l Trade.*
11 - - - - - - - - - - - - - - - - - - - -X
12
13 United States of America,
14 Appellee,
15
16 -v.- 16-227
17
18 Andrej Konopski, Mindy A. Konopski,
19 Defendants,
20
21 Jonathan Fernandes,
22 Defendant-Appellant.
23
24
25 - - - - - - - - - - - - - - - - - - - -X
*
Judge Timothy C. Stanceu, Chief Judge of the United States Court
of International Trade, sitting by designation.
1
1 FOR APPELLANT: Robert G. Smith, Jay S. Ovsiovitch,
2 Federal Public Defender’s Office,
3 Western District of New York,
4 Rochester, NY.
5
6 FOR APPELLEE: Monica J. Richards, Assistant
7 United States Attorney, for James
8 P. Kennedy, Jr., Acting United
9 States Attorney for the Western
10 District of New York, Buffalo, NY.
11
12 Appeal from a judgment of the United States District Court
13 for the Western District of New York (Wolford, J.).
14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
15 DECREED that the judgment of the district court be AFFIRMED.
16 Jonathan Fernandes appeals from a criminal judgment and an
17 order of forfeiture entered in the United States District Court
18 for the Western District of New York (Wolford, J.). Fernandes
19 was convicted on eleven counts (and acquitted on three), and
20 was sentenced principally to a 240-month term of incarceration.
21 The district judge also ordered the forfeiture of thirteen
22 firearms seized from Fernandes’s home. Fernandes challenges
23 the forfeiture order, and also the sufficiency of the evidence
24 and the reasonableness of the sentence with respect to a single
25 count of conviction--namely, aiding and abetting witness
26 tampering in violation of 18 U.S.C. § 1512(b)(1) and (2). We
27 assume the parties’ familiarity with the underlying facts, the
28 procedural history, and the issues presented for review.
29 1. “We review challenges to the sufficiency of evidence
30 de novo.” United States v. Pierce, 785 F.3d 832, 837 (2d Cir.
31 2015). A defendant challenging the sufficiency of evidence
32 takes up a heavy burden because “we view the evidence in the
33 light most favorable to the government, drawing all inferences
34 in the government’s favor and deferring to the jury’s assessments
35 of the witnesses’ credibility.” Id. at 838. “We will sustain
36 the jury’s verdict if any rational trier of fact could have found
37 the essential elements of the crime beyond a reasonable doubt.”
38 Id. (internal quotation marks omitted) (emphasis omitted).
39 “The jury may reach its verdict based upon inferences drawn from
2
1 circumstantial evidence,” and on review, “the evidence must be
2 viewed in conjunction, not in isolation.” United States v.
3 Persico, 645 F.3d 85, 104 (2d Cir. 2011) (quotation marks
4 omitted).
5 To prove witness tampering in violation of 18 U.S.C.
6 § 1512(b)(1), the government must establish that the defendant
7 “knowingly use[d] intimidation, threaten[ed], or corruptly
8 persuade[ed] another person, or attempt[ed] to do so . . . with
9 intent to influence, delay, or prevent the testimony of any
10 person in an official proceeding.” And any person who “aids,
11 abets, counsels, commands, induces or procures” the commission
12 of such a crime “is punishable as a principal.” 18 U.S.C. § 2(a).
13 “As at common law, a person is liable under § 2 for aiding and
14 abetting a crime if (and only if) he (1) takes an affirmative
15 act in furtherance of that offense, (2) with the intent of
16 facilitating the offense’s commission.” Rosemond v. United
17 States, 134 S. Ct. 1240, 1245 (2014); see also Hicks v. United
18 States, 150 U.S. 442, 449 (1893) (accomplice liability attaches
19 to conduct done “with the intention of encouraging and abetting”
20 the crime).
21 At trial, the government introduced recordings of telephone
22 conversations between Fernandes and his co-defendants while
23 Fernandes was in custody. In one of them, his co-defendants (who
24 took turns on the line) referred to a court document pertaining
25 to an inmate who was cooperating against Fernandes. One
26 co-defendant said, “what I would like to do bub is, I mean if
27 it is alright with you, I would like to make about 25 copies
28 of this . . . and just send them to about 25 guys up in Greene
29 just randomly up in Greene Correctional.” Appellant Br. 29-30
30 (citation omitted). Fernandes replied, “[t]here you go, do it,
31 do it.” Id. at 30. The co-defendant said, “that’s all I want
32 to know,” and Fernandes said, “[y]ep, fuck yeah, do it.” Id.
33 When his other co-defendant asked again whether he was ok with
34 the plan, Fernandes replied, “[y]eah, yeah do that.” Id.
35 Fernandes argues that he “may have had an interest in the
36 outcome of” the plan to intimidate or harm a cooperating witness,
37 but that “he did not actively participate in it being carried
38 out.” Id. His words, however, were enough. “In proscribing
39 aiding and abetting, Congress used language that ‘comprehends
3
1 all assistance rendered by words, acts, encouragement, support,
2 or presence’ . . . .” Rosemond, 134 S. Ct. at 1246 (quoting Reves
3 v. Ernst & Young, 507 U.S. 170, 178 (1993)). Fernandes not only
4 encouraged the crime, he authorized it. He may not have devised
5 the plan or personally carried it out, but his co-defendant
6 described it to him with the caveat “if it is alright with you”;
7 and when Fernandes assented, the co-defendant said, “that’s all
8 I want to know.” When his other co-defendant double-checked
9 that the plan was acceptable to him, Fernandes said, “Yeah, yeah
10 do that.” His co-defendants proposed the crime and sought
11 Fernandes’s approval. He unambiguously provided it. Viewed in
12 the light most favorable to the government, the evidence was
13 easily sufficient for a reasonable jury to find Fernandes guilty
14 of aiding and abetting witness tampering.1
15 2. We review sentences imposed by the district court for
16 reasonableness, which includes procedural and substantive
17 dimensions. Gall v. United States, 552 U.S. 38, 51 (2007). A
18 district court errs procedurally when it fails to calculate or
19 miscalculates the Sentencing Guidelines range, treats the
20 Guidelines as mandatory, fails to consider the sentencing
21 factors required by 18 U.S.C. § 3553(a), or does not adequately
22 explain the sentence. Id. Substantive reasonableness is
23 reviewed for abuse of discretion. Id.
24 Fernandes argues that a 240-month sentence (the statutory
25 maximum) is substantively unreasonable for witness tampering,
26 especially in light of the shorter sentences imposed on his
27 co-defendants; and he argues that it is procedurally
28 unreasonable because the district judge failed to explain it
29 adequately. His arguments fundamentally misunderstand the role
30 of the witness-tampering conviction in the sentence. Fernandes
31 was not sentenced to 240 months on the witness tampering
32 conviction alone; he was sentenced to a total term of 240 months
33 for all eleven counts of conviction.
34 Under USSG § 3D1.2(c), counts of conviction are “grouped”
35 together if one of them “embodies conduct that is treated as
1
That the plan to intimidate the cooperating witness may not have
been carried out the way Fernandes and his codefendants had discussed
during the phone conversation is of no moment, as § 1512(b)(1)
criminalizes attempted witness tampering.
4
1 a specific offense characteristic in, or other adjustment to,
2 the guideline applicable to another” of them. That applies here
3 because the guideline applicable to the drug counts includes
4 a two-point offense-level increase if the defendant both
5 receives an aggravating-role adjustment under § 3B1.1 (Fernandes
6 did) and also “engaged in witness intimidation . . . or otherwise
7 obstructed justice in connection with the investigation or
8 prosecution of the offense.” USSG § 2D1.1(b)(15)(D). Since the
9 witness-tampering count is included as a specific offense
10 characteristic of the drug counts, those counts are “grouped”
11 together; and under USSG § 3D1.3(a), the offense level of the
12 group is that of the highest offense level of the counts within
13 it. In this case, that is the drug counts, which are driven by
14 drug quantity and effectively “swallow” the witness-tampering
15 count. The only effect of the latter is therefore the two-point
16 offense-level increase, which resulted in no more than a
17 one-point increase because the total offense level with the
18 two-point increase was one point higher than the maximum possible
19 43.
20 In sum, the witness-tampering count brought the offense
21 level to 43, resulting in a guidelines sentence of life
22 imprisonment, rather than an offense level of 42 and a guidelines
23 range of 360 months to life. The actual sentence imposed was
24 a total term of 240 months on all counts--the statutory maximum
25 sentence for the witness tampering count on its own, but a
26 substantial downward departure in terms of the total sentence
27 in either case. Fernandes has not shown any procedural error
28 or substantive unreasonableness in that sentence.
29 3. Fernandes contends that the district court erred by
30 finding a nexus between the crimes of conviction and the seized
31 firearms pursuant to 18 U.S.C. §§ 924(d) and 3665, and that the
32 order of forfeiture should be vacated. “Because criminal
33 forfeiture is viewed as part of the sentencing process, the
34 government need prove facts supporting forfeiture only by a
35 preponderance of the evidence. We review the district court’s
36 factual findings for clear error and its legal conclusions de
37 novo.” United States v. Gaskin, 364 F.3d 438, 461-62 (2d Cir.
38 2004) (citations omitted).
39
5
1 At Fernandes’s sentencing, the district court found by a
2 preponderance of the evidence that his residence was used for
3 the manufacture and distribution of methamphetamines; that all
4 thirteen firearms that were seized from the residence were
5 readily accessible and in close proximity to the drug trafficking
6 operation;2 that most were loaded; and that Fernandes would have
7 a gun with him whenever an unknown person arrived. The firearms
8 were in proximity to the manufacture and sale of methamphetamines
9 and were visible to persons who entered the residence to purchase
10 methamphetamines or to assist in its manufacture. “It is
11 axiomatic that drug dealing and guns go hand in hand.” United
12 States v. Bermudez, 529 F.3d 158, 170 (2d Cir. 2008) (Underhill,
13 J., concurring in part and dissenting in part). Even accepting
14 as true Fernandes’s argument that he used (at least some of)
15 the weapons for skeet shooting or other sporting purposes, the
16 district court’s finding that all of the weapons were involved
17 in and facilitated Fernandes’s drug crimes was not clearly
18 erroneous.
19 Accordingly, and finding no merit in appellant’s other
20 arguments, we hereby AFFIRM the judgment of the district court.
21 FOR THE COURT:
22 CATHERINE O’HAGAN WOLFE, CLERK
2
As the district court explained, three of the firearms were located
on a work bench in Fernandes’s garage near numerous items related
to the manufacturing of methamphetamines. Nine of the firearms were
located in Fernandes’s bedroom, which was the epicenter of the drug
manufacturing activity. Of the firearms in the bedroom, one was
leaning against the desk where the drugs were weighed and distributed,
one was strapped to the side of that desk, and the others were visibly
displayed on the back wall. The final firearm, which was seized during
the execution of the second search warrant at Fernandes’s home, was
the weapon that Fernandes had taken with him when he fled the scene
before law enforcement arrived to execute the first search warrant.
6