United States v. Asch ( 2019 )

18‐395‐cr
United States v. Asch
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 COURTʹS 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 ʺSUMMARY ORDERʺ). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 29th day of May, two thousand nineteen.
PRESENT: DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges,
BRENDA K. SANNES,
District Judge.*
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UNITED STATES OF AMERICA,
Appellee,
v. 18‐395‐cr
ROBERT CHRISTOPHER ASCH, AKA Chris,
Defendant‐Appellant,
GILBERTO VALLE, AKA Sealed Defendant 1,
MICHAEL VANHISE, AKA Sealed Defendant 1,
* Judge Brenda K. Sannes, of the United States District Court for the Northern District of New
York, sitting by designation.
RICHARD MELTZ, AKA Rick,
Defendants.†
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FOR APPELLEE: WON S. SHIN, Assistant United States
Attorney (Hadassa Waxman, Karl Metzner,
Assistant United States Attorneys, on the brief),
for Geoffrey S. Berman, United States Attorney
for the Southern District of New York, New
York, New York.
FOR DEFENDANT‐APPELLANT: BRIAN LANCIAULT, JR. (Brian D. Waller, on
the brief), Thompson Hine LLP, New York,
New York.
Appeal from the United States District Court for the Southern District of
New York (Gardephe, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Defendant‐appellant Robert Christopher Asch appeals from a judgment
entered February 1, 2018, following a jury trial, convicting him of violating 18 U.S.C.
§ 1201(c) by conspiring to kidnap members of a co‐defendantʹs family and an individual
who turned out to be an undercover law enforcement agent. In a 92‐page decision
entered August 8, 2017, the district court carefully reviewed the evidence presented at
trial and denied Aschʹs (and co‐defendant Michael Van Hiseʹs) motions for a judgment
of acquittal or a new trial. On January 29, 2018, Asch was sentenced principally to
† The Clerk of the Court is directed to amend the caption to conform to the above.
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15 yearsʹ imprisonment. On appeal, Asch challenges the sufficiency of the evidence and
the reasonableness of his sentence. We assume the partiesʹ familiarity with the
underlying facts, procedural history, and issues on appeal.
DISCUSSION
I. Sufficiency of the Evidence
Asch challenges the sufficiency of the evidence both as to the conspiracy
to kidnap members of Van Hiseʹs family (Count One) and the conspiracy to kidnap an
undercover law enforcement agent (Count Two).
This Court reviews a sufficiency of the evidence challenge de novo, ʺbut
defendants face a heavy burden, as the standard of review is exceedingly deferential.ʺ
United States v. Baker, 899 F.3d 123, 129 (2d Cir. 2018) (internal quotation marks
omitted). The evidence must be viewed in the light most favorable to the government,
drawing all inferences in the governmentʹs favor and deferring to the juryʹs assessments
of the witnessesʹ credibility. See id.; see also United States v. Santos, 541 F.3d 63, 70 (2d
Cir. 2008) (ʺ[I]n a conspiracy case, deference to the juryʹs findings is especially
important . . . because a conspiracy by its very nature is a secretive operation, and it is a
rare case where all aspects of a conspiracy can be laid bare in court with the precision of
a surgeonʹs scalpel.ʺ (internal quotation marks omitted)). ʺA judgment of acquittal can
be entered ʹonly if the evidence that the defendant committed the crime alleged is
nonexistent or so meagerʹ that no ʹrational trier of fact could have found the essential
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elements of the crime beyond a reasonable doubt.ʹʺ United States v. Taylor, 816 F.3d 12,
22 (2d Cir. 2016) (quoting United States v. Espaillet, 380 F.3d 713, 718 (2d Cir. 2004)).
A. Conspiracy to Kidnap Van Hise Family Members
The jury found Asch guilty of conspiring with Van Hise and Richard
Meltz to kidnap one or more members of Van Hiseʹs family, specifically Van Hiseʹs
wife, his sister‐in‐law, or one or more of the latterʹs four minor children. Asch argues
that the evidence was insufficient to show a genuine agreement or criminal intent. We
are not persuaded.
First, Asch argues there was insufficient evidence for the jury to find a
genuine agreement because the evidence showed only that the discussions were
inconclusive, noncommittal, and hypothetical and that any plan lacked the required
specificity. This argument is unpersuasive as the government presented evidence of
email conversations, phone conversations, and in‐person meetings among Asch, Meltz,
and Van Hise in which they devised a plan to kidnap Van Hiseʹs family members and
prepared to do so. For example, the government presented evidence that Asch met
with Van Hise in the town where Van Hise lives in 2012 and Van Hise showed Asch
where they could dump a body. Shortly after their in‐person meeting, Asch and Van
Hise began discussing kidnapping Van Hiseʹs family, and Van Hise asked Meltz to
help. In preparation, Van Hise shared pictures of his family members, as well as their
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location, and the group discussed plans for how to kidnap members of the Van Hise
family without getting caught.
Although these co‐defendants at times expressed concerns and
reservations, they also reassured one another that the plan could be carried out. For
example, after Van Hise expressed doubt, Asch reassured him that it was ʺpossibleʺ and
ʺcould happen if the circumstances are right.ʺ Appʹx at 508. Moreover, while some
details such as time and location were not finalized, the ʺessential nature of the planʺ to
kidnap and murder one or more members of the Van Hise family was agreed upon. See
United States v. McDermott, 245 F.3d 133, 137 (2d Cir. 2001) (ʺThe coconspirators need
not have agreed on the details of the conspiracy, so long as they agreed on the essential
nature of the plan.ʺ (internal quotation marks omitted)); cf. United States v. Mulder, 273
F.3d 91, 115 (2d Cir. 2001) (finding sufficient evidence for Hobbs Act conspiracy
conviction even though the verdict did not identify defendantʹs victims because targetʹs
identity is not an element of a Hobbs Act conspiracy). Thus, a reasonable jury could
have found that Asch, Van Hise, and Meltz conspired to kidnap one or more members
of the Van Hise family.
Second, Aschʹs argument that he had no criminal intent because the
evidence shows he was equivocal and merely engaging in fantasy is unpersuasive.
From the evidence presented, a reasonable jury could have found that Asch intended to
commit a kidnapping. For example, Asch had phone conversations with Meltz about
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the planned kidnapping, travelled across state lines to meet Van Hise and look at
possible locations to dump a body, and conducted research over the Internet on how to
ʺmake sleeping powder,ʺ how to ʺmake sleeping gas,ʺ where to purchase chloroform,
and ʺwhat pressure points will cause someone to go unconscious the fastest.ʺ Appʹx at
345; see United States v. Valle, 807 F.3d 508, 519 (2d Cir. 2015) (ʺInternet searches can
provide some relevant proof of intent.ʺ).
Asch argues that this case is like Valle, where we held ‐‐ as did the district
court ‐‐ that there was insufficient evidence to show that the defendant had the requisite
criminal intent and was not just fantasizing about committing a crime. See id. at 516‐23.
In Valle, however, the conspiracy was ʺentirely virtual [in] natureʺ and the defendant
made no ʺeffort to communicate by telephone, text message, or web camera, much less
meet in person,ʺ with his coconspirators. Id. at 517. Indeed in Valle, the defendant
ʺformed no real life relationshipʺ with his coconspirators, ʺdid not know their real
names,ʺ and ʺcould not be sure of their genders, ages, or locations.ʺ Id. By contrast,
Asch, Van Hise, and Meltz, had email conversations, phone conversations, and in‐
person meetings, and their conversations were not ʺrife with indicia of fantasy.ʺ Id. at
523. In fact, Asch, Van Hise, and Meltz used their real names and shared personal
information about their lives. Van Hise also sent Asch and Meltz pictures of his family
members, used their real names and ages, and shared their real location. Accordingly,
there was sufficient evidence for a jury to convict Asch on Count One.
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B. Conspiracy to Kidnap an Undercover Agent
The jury found Asch guilty of conspiring with Meltz to kidnap an
individual who unbeknownst to them was an undercover agent. Asch argues that the
evidence was insufficient to show a genuine agreement and intent to kidnap the
undercover agent. We are not persuaded. The government presented evidence that
Asch discussed kidnapping and murdering women with another undercover agent
(ʺDarrenʺ) beginning in January 2013, and the two began focusing on kidnapping the
undercover agent (a woman). In February 2013, Asch and Meltz spoke on the phone
about kidnapping the undercover agent. Asch then introduced Darren to Meltz so that
Meltz could help, and Meltz and Darren talked at least eight times after they were
introduced to discuss this kidnapping. Asch also told Darren that he and Meltz were
ʺcomfortable going to the next level.ʺ Appʹx at 565.
Asch argues there was no agreement because Meltz declined to be present
at the kidnapping and Meltz did not believe that Asch actually intended to kidnap the
undercover agent. We reject that argument. First, Meltz did not need to be present to
further the conspiracy because ʺ[a] conspiracy may exist even if a conspirator does not
agree to commit or facilitate each and every part of the substantive offense.ʺ Salinas v.
United States, 522 U.S. 52, 63 (1997). It was sufficient that Meltz used his law
enforcement background to advise Asch on how to commit the kidnapping, including
advice on how and where to buy a stun gun, and devised a plan with Asch on how to
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kidnap the undercover agent. Second, Aschʹs argument that Meltz did not believe Asch
intended to commit the kidnapping is based on Meltzʹs April 14, 2013 meeting with
Darren. The parties disagreed whether Meltz told Darren at that meeting that ʺ[Asch]
would,ʺ Appʹx at 570, or ʺ[Asch] wouldnʹt,ʺ Appʹx at 490, go through with the
kidnapping. The jury was given a copy of both transcripts and heard the recording at
least eight times. The jury, therefore, was allowed to interpret the recordings as Meltz
telling Darren that Asch would commit the kidnapping ‐‐ that is, that Meltz believed
Asch actually intended to commit the kidnapping.
Lastly, the government presented sufficient evidence of Aschʹs intent to
kidnap the undercover agent. For instance, the government presented evidence that
Asch refused to work with individuals who expressed uncertainty as to committing the
kidnapping, Meltz said Asch was serious about the plan to kidnap the undercover
agent, Asch bought a stun gun from a Pennsylvania gun show as well as other items he
believed were necessary to commit the kidnapping, and Asch conducted surveillance
on the undercover agent. Accordingly, there was sufficient evidence to convict Asch on
Count Two.
II. Reasonableness of the Sentence
Asch argues that his sentence was unreasonable because it was ʺgreater
than necessaryʺ and ʺcontradicts factual matters established at trial.ʺ Appellantʹs Br. at
57‐58. We review a sentence for substantive reasonableness under a deferential abuse‐
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of‐discretion standard. United States v. Thavaraja, 740 F.3d 253, 258 (2d Cir. 2014). A
sentence is substantively unreasonable only where it is so ʺshockingly high, shockingly
low, or otherwise unsupportable as a matter of law that allowing [it] to stand would
damage the administration of justice.ʺ Id. (internal quotation marks omitted). We
therefore will ʺset aside a district courtʹs substantive determination only in exceptional
cases where the trial courtʹs decision cannot be located within the range of permissible
decisions.ʺ United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (internal
quotation marks omitted).
Asch had a total offense level of 43 and a criminal history category of I,
and his United States Sentencing Guidelines Manual range was life imprisonment. The
district court considered the nature and circumstances of Aschʹs offenses, as well as
Aschʹs personal history and characteristics, before sentencing him principally to 15
yearsʹ imprisonment. This was within the range of permissible decisions, and therefore
the court did not abuse its discretion.
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We have considered Aschʹs remaining arguments and conclude they are
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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