United States v. Desposito , 81 A.L.R. Fed. 2d 589 ( 2013 )

11-2634-cr
United States v. Desposito
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2012
(Argued: October 26, 2012 Decided: January 11, 2013)
Docket No. 11-2634-cr
UNITED STATES OF AMERICA,
Appellee,
v.
SONNY DESPOSITO,
Defendant-Appellant.
Before:
CABRANES, CHIN, and CARNEY, Circuit Judges.
Appeal from a judgment of the United States
District Court for the Southern District of New York (Cathy
Seibel, J.), convicting defendant-appellant of, inter alia,
using fire to commit a felony under 18 U.S.C. § 844(h)(1)
and attempting to obstruct an official proceeding under 18
U.S.C. § 1512(c)(2).
AFFIRMED.
SARAH REBECCA KRISSOFF, Assistant United
States Attorney (Margery Feinzig,
Iris Lan, Assistant United States
Attorneys, on the brief), for Preet
Bharara, United States Attorney for
the Southern District of New York,
New York, New York, for Appellee.
STEPHEN NEAL PREZIOSI, Law Office of
Stephen N. Preziosi PC, New York,
New York, for Defendant-Appellant.
CHIN, Circuit Judge:
On January 23, 2009, defendant-appellant Sonny
Desposito set a car on fire at a residence in Chestnut
Ridge, New York. Then, with the police distracted by the
fire, he robbed the M&T Bank, stealing approximately
$10,000. After his arrest, he sent a series of letters from
jail seeking to persuade a relative and a friend to create
falsified evidence he hoped would raise a reasonable doubt
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at trial. The letters were intercepted and turned over to
the police. Desposito was convicted of bank robbery,
"us[ing] fire . . . to commit [a] felony," and attempting to
obstruct an official proceeding, in violation of 18 U.S.C.
§§ 2113(a), (d), 844(h)(1), and 1512(c)(2). He appeals the
convictions of using fire to commit a felony and attempting
to obstruct an official proceeding. We affirm.
STATEMENT OF THE CASE
A. The Facts1
1. The Bank Robbery
On January 21, 2009, Desposito performed a test
run of his scheme to rob the M&T Bank in Chestnut Ridge, New
York. He began by setting fire to a car parked in a
residential driveway in the vicinity and then practiced
driving from that location to the bank. Because the car did
not fully engulf in flames, the next day he arranged for his
friend Betty Mastrarrigo to buy him a can of lighter fluid
from the A&P grocery store where she worked.
1
In reviewing a criminal conviction, we view the
evidence in the light most favorable to the government. See
Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v.
Vitale, 459 F.3d 190, 191 (2d Cir. 2006).
- 3 -
The following day, on January 23, Desposito
carried out his scheme. First, he set fire to another car
parked in a residential driveway about two minutes away from
the M&T Bank. Then, as police received 911 calls about the
fire, which completely destroyed the car, Desposito
proceeded to the bank. Wearing a black ski cap and carrying
what appeared to be a pistol (but turned out to be a pellet
gun), Desposito robbed the bank by threat of force and stole
approximately $10,000.
He then escaped through the woods to his waiting
car and drove to Pearl River, New York. Once there, he
pulled over on a side street and burned the lighter fluid
can and the clothes he had worn during the robbery in a pile
on the sidewalk. After he sped away, a nearby resident
found the fire and put it out. A black ski cap was found
among the debris; testing later determined that the cap
contained traces of Desposito's DNA.
2. The Attempt to Obstruct His Trial
Desposito was later arrested. While he was in
jail awaiting trial, he wrote ten letters and mailed them in
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three sets to his friend Besnick Ljuljanaj, to whom
Desposito had confessed his crime and in whose house he had
hidden the stolen money.2 Ljuljanaj's father intercepted
all of these letters when they were delivered and turned
them over to his attorney, who then delivered them to law
enforcement.
The first mailing, dated April 9, 2009, contained
six letters. In one letter addressed to Ljuljanaj,
Desposito asked him, among other things, to deliver the
other five letters to the respective addressees. He also
suggested that Ljuljanaj read the letter addressed to
Desposito's half-brother Kris Fortier so he would understand
why "the next time I send you mail, it will have a bag with
my prints on it to give to [K]ris."
In Fortier's letter, Desposito directed his half-
brother to plant a new lighter fluid can that could be
introduced into evidence at his criminal trial. As part of
the plan, Fortier was supposed to send him some A&P grocery
2
As discussed below, Desposito wrote an additional five
letters and mailed them to his own father. Thus, he penned a
total of fifteen letters related to his obstruction scheme.
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bags in a care package so that he could place his
fingerprints on them. Desposito would then send the bags
back to Ljuljanaj, who would forward them to Fortier. Once
he received them, Fortier was supposed to place a new
lighter fluid can, with Betty Mastrarrigo's fingerprints on
it, inside the bags so it would appear that Desposito had
never used the original can of lighter fluid Mastrarrigo had
bought for him. Desposito's final instruction read: "Pat
yourself on the back, you just rose reasonable doubt and
saved my life."
Another enclosed letter was addressed to
Mastrarrigo. In it, Desposito tried to convince her to put
her fingerprints on the new can of lighter fluid. Rather
than tell her his plan, however, Desposito lied and told her
that his father had found the original can, but had
contaminated it with his own fingerprints. He asked her to
touch the can again so a fingerprint analysis would verify
that it was the same can.
On April 24, 2009, Desposito sent a second
envelope containing three similar, but shorter, letters for
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Ljuljanaj, Fortier, and Mastrarrigo because he was afraid
the first package had not reached them. In Ljuljanaj's
letter, Desposito asked him to check at the post office to
see if the first package of letters was awaiting payment of
additional postage because it was too heavy.
On May 1, 2009, Desposito sent a third envelope
with a single letter for Ljuljanaj. In it, Desposito asked
Ljuljanaj to write back to confirm that he was receiving his
letters. He also told Ljuljanaj to disregard everything in
the prior two letters if he had received them. Desposito
apparently had not abandoned his plan, however, because
police found five more letters addressed to Desposito's
father in the family residence. These letters contained
messages for his half-brother Fortier, notifying him of the
three mailings to Ljuljanaj and instructing him to find out
whether Ljuljanaj had received them and, if not, to retrieve
them from the post office.
B. Proceedings Below
On August 12, 2010, Desposito was indicted for
committing bank robbery in violation of 18 U.S.C. § 2113(a),
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(d), using fire to commit a felony in violation of 18 U.S.C.
§ 844(h)(1), and attempting to obstruct, influence, or
impede an official proceeding in violation of 18 U.S.C.
§ 1512(c)(2).3
On November 30, 2010, a jury trial commenced
before Judge Seibel. Desposito took the stand in his own
defense and intimated that Ljuljanaj had committed the bank
robbery. When asked about the letters, Desposito admitted
writing them, but explained that he "constructed them in
such a way that [Ljuljanaj] could exonerate [Desposito]
without directly implicating himself, without betraying his
own involvement in any way." After this testimony, the
3
The indictment also accused Desposito of tampering
with evidence, in violation of 18 U.S.C. § 1512(c)(1), and using
fire to tamper with evidence, in violation of 18 U.S.C.
§ 844(h)(1), based on his attempt to burn the items associated
with the robbery. The District Court later dismissed the
tampering with evidence count at trial, pursuant to Federal Rule
of Criminal Procedure 29, because there was no evidence that any
official proceeding was pending at the time. See 18 U.S.C.
§ 1512(c)(1) (prohibiting "alter[ing], destroy[ing],
mutilat[ing], or conceal[ing] a record, document, or other
object, or attempt[ing] to do so, with the intent to impair the
object's integrity or availability for use in an official
proceeding"). The District Court also dismissed, under Rule 29,
the count charging use of fire to tamper with evidence, on the
basis that there was no underlying tampering. See 18 U.S.C. §
844(h)(1) (prohibiting "us[ing] fire or an explosive to commit
any felony which may be prosecuted in a court of the United
States").
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government asked for a sidebar and sought a ruling in limine
on the admissibility of evidence about a second plan
contained in Desposito’s letters.
The second plan related to a pending New Jersey
state prosecution against Desposito. The letters showed
that Desposito was plotting to discourage the victim of the
New Jersey crime from testifying by having Ljuljanaj
impersonate someone from the Witness and Victim Advocacy
Center. These portions of the letters had been redacted
during the government's case-in-chief.
Over the defendant's objection, the district court
ruled that such evidence was admissible to impeach
Desposito's character for truthfulness, pursuant to Federal
Rules of Evidence 608(b) and 403. When the government began
to ask Desposito about the second plan, the district court
immediately instructed the jury about the limited purpose of
the questioning. Ultimately, Desposito admitted asking
Ljuljanaj to carry out the second plan, even though
Ljuljanaj bore no responsibility for that crime.
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On December 8, 2010, the district court delivered
its charge to the jury. In instructing the jury on the
crime of using fire to commit a felony, the court explained:
In order to prove that the defendant
used fire, the government must prove
beyond a reasonable doubt that the
defendant actively employed fire to
commit the felony. To use has its common
meaning, to employ, to avail oneself of,
or to carry out a purpose or action by
means of. To prove that fire was used to
commit a felony, the government must
prove beyond a reasonable doubt that the
fire was a means used by the defendant to
carry out the felony. It must be an
integral part of the felony, not
something incidental or independent or
that merely happened to facilitate or
assist it. The fire must be part and
parcel of the predicate crime.
So to satisfy this element, you must
also find the defendant knowingly used
fire, that means used fire purposely and
voluntarily and not by accident or
mistake.
The same day, the jury found Desposito guilty of all three
counts. The district court subsequently sentenced Desposito
to concurrent 108-month terms of imprisonment on the bank
robbery and attempt to obstruct justice counts, and a
consecutive 120-month term on the use of fire count, as
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required by 18 U.S.C. § 844(h)(1).4 The judgment of
conviction was filed on June 17, 2011. This appeal
followed.
DISCUSSION
Desposito challenges his conviction on several
grounds. First, he argues that the evidence was
insufficient to convict him of using fire to commit a felony
because it only showed that he used fire to facilitate the
robbery, rather than to commit the crime. Second, even if
§ 844(h)(1) proscribes using fire as he did, Desposito
4
The statute requires that:
in addition to the punishment provided for
[the] felony, [the person using fire to
commit that felony] be sentenced to
imprisonment for 10 years. . . .
Notwithstanding any other provision of
law, the court shall not place on
probation or suspend the sentence of any
person convicted of a violation of this
subsection, nor shall the term of
imprisonment imposed under this subsection
run concurrently with any other term of
imprisonment including that imposed for
the felony in which the explosive was used
or carried.
18 U.S.C. § 844(h). Accordingly, the district court was required
to impose the 120 months for Desposito's violation of this
statute on a consecutive basis. See Sicurella v. United States,
157 F.3d 177, 178-79 (2d Cir. 1998) (per curiam).
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argues that convicting him in this case violates his Due
Process rights because he lacked fair warning that his
conduct was illegal. Third, he argues that the letters he
wrote from jail were an insufficient basis for convicting
him of attempting to obstruct an official proceeding because
his scheme depended on the voluntary cooperation of others
and there was no evidence they ever agreed to assist him.
Finally, Desposito argues that permitting the government to
question him about the pending New Jersey prosecution was
overly prejudicial and warrants a new trial. We review each
of these claims in turn.
A. Using Fire to Commit a Felony
1. Applicable Law
We review de novo challenges to the sufficiency of
the evidence underlying a criminal conviction. See United
States v. Mahaffy, 693 F.3d 113, 123 (2d Cir. 2012).
Section 844(h)(1) of the Criminal Code provides, in relevant
part, that "[w]hoever . . . uses fire or an explosive to
commit any felony which may be prosecuted in a court of the
United States . . . shall, in addition to the punishment
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provided for such felony, be sentenced to imprisonment for
10 years." 18 U.S.C. § 844(h)(1). We have not yet had
occasion to construe the phrase "uses fire . . . to commit
any felony."
In construing a statute, we begin with the plain
language, giving all undefined terms their ordinary meaning.
See Schindler Elevator Corp. v. United States ex rel. Kirk,
131 S. Ct. 1885, 1891 (2011); Smith v. United States, 508
U.S. 223, 228 (1993); 23-34 94th St. Grocery Corp. v. N.Y.C.
Bd. of Health, 685 F.3d 174, 182 (2d Cir. 2012). Absent an
ambiguity, our analysis also ends with the statutory
language. See Schindler Elevator Corp., 131 S. Ct. at 1893;
Devine v. United States, 202 F.3d 547, 551 (2d Cir. 2000).
"[W]e must presume that the statute says what it means."
Devine, 202 F.3d at 551. We will resort to legislative
history and other tools of statutory interpretation only if
we conclude that the text is ambiguous. See Auburn Hous.
Auth. v. Martinez, 277 F.3d 138, 143-44 (2d Cir. 2002).
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2. Application
Because the statute does not define the word
"use," we supply it with its ordinary meaning. The verb
"use" means "to put into action or service," "to avail
oneself of," or "to carry out a purpose or action by means
of." Merriam-Webster's Collegiate Dictionary 1378 (11th ed.
2004); accord Black's Law Dictionary 1541 (6th ed. 1990);
see also Bailey v. United States, 516 U.S. 137, 145 (1995),
superseded by statute, Act [t]o throttle criminal use of
guns, Pub. L. No. 105-386, § 1, 112 Stat. 3469 (1998)
(amending 18 U.S.C. § 924(c)); United States v. Ruiz, 105
F.3d 1492, 1503-04 (1st Cir. 1997) (interpreting 18 U.S.C.
§ 844(h)(1)). Because "use" has a variety of meanings, the
surrounding context helps clarify which one Congress
intended. See Bailey, 516 U.S. at 143, 145. Here the word
appears in the phrase "uses fire . . . to commit any
felony." 18 U.S.C. § 844(h)(1). Thus, to "use" fire means
the accused must have carried out the crime by means of
fire.5
5
The Supreme Court, relying on the same dictionary
definitions of "use," concluded that "use" in 18 U.S.C. § 924(c)
requires "active employment" and thus did not apply to the
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Giving the word this plain meaning, it is obvious
that Desposito "used" fire to commit bank robbery. Indeed,
as the evidence showed, the use of fire was an integral part
of Desposito's scheme to rob the bank. He admitted to
Ljuljanaj that his plan was to rob the bank by diverting the
police with the car fire. Two days before the robbery,
Desposito rehearsed the robbery by setting fire to a car and
driving to the bank to gauge the travel time. The next day,
he obtained some lighter fluid so the fire would be more
imposing. On the day of the robbery, he set fire to another
car to divert the police and drove to the M&T Bank just as
they received the first 911 call about the fire. While the
police were preoccupied with the fire he had set, Desposito
robbed the bank and escaped with $10,000. This evidence was
passive presence of a weapon during a narcotics sale. See Bailey
v. United States, 516 U.S. 137, 145-47, 150-51 (1995); cf. id. at
147 ("The phrase 'uses a firearm to commit [any felony]'
indicates that Congress originally intended to reach the
situation where the firearm was actively employed during
commission of the crime."). Desposito insists we should use
Bailey's "actively employed" formulation in construing
§ 844(h)(1), but that definition is not instructive here.
Because he concedes that he started the car fire, it is clear
that Desposito "actively employed" fire. The question remains
whether he used it "to commit [the] felony." 18 U.S.C.
§ 844(h)(1).
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more than sufficient to convict him of using fire to commit
the felony, or in other words, to convict him of carrying
out the bank robbery by means of fire.6
Desposito argues that the fire only facilitated
his crime and, in reliance on United States v. Hayward, 6
F.3d 1241 (7th Cir. 1993), overruled on other grounds,
United States v. Colvin, 353 F.3d 569 (7th Cir. 2003), he
insists that mere facilitation is beyond the scope of
§ 844(h)(1). In Hayward, the defendants were convicted of
using fire to commit a conspiracy against civil rights
because they had burned crosses on the lawn of a white
family who had entertained black house guests. See Hayward,
6 F.3d at 1243-44. The Seventh Circuit held that the text
of § 844(h)(1) clearly applied to the defendants' use of
6
Indeed, others using fire or explosives to distract the
police while they robbed a bank have been convicted under this
statute without challenging its straightforward application to
their crimes. See, e.g., United States v. Tucker, 253 F. App'x
718, 719-20 (10th Cir. 2007) (non-precedential order and
judgment) (conviction by guilty plea based on placing an
explosive under a car as a diversion while robbing a bank);
United States v. Ramsey, No. 01-005-04, 2006 WL 328371, at *1-2
(E.D. Pa. Feb. 10, 2006) (jury conviction based on setting fire
to a school as a diversion while robbing a bank).
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fire to burn the crosses.7 See id. at 1245-46. When the
defendants insisted that this interpretation would lead to
absurd results, such as adding ten years to a car thief's
sentence because he used a cigarette lighter as a light
source while he picked the car's lock, the court reasoned
that "there is a significant difference between using fire
to commit a felony and using fire to facilitate or assist in
the commission of a felony." Id. at 1246. Using fire to
light the crosses was "an integral part of the threat or
intimidation" at the heart of the conspiracy against civil
rights, which could not be replicated by illuminating the
crosses with another source of light. Id. at 1247. Thus,
the Seventh Circuit concluded that "[t]he fire did not
simply facilitate or assist [the defendants] in the
commission of their crime." Id.
We conclude that Hayward is of no help to
Desposito. First, the distinction drawn in Hayward between
committing and facilitating a felony was at best dicta.
7
The Seventh Circuit later overruled Hayward on the
ground that conspiracy could not be the predicate felony for a
§ 844(h)(1) conviction unless the crime required proof of an
overt act. See United States v. Colvin, 353 F.3d 569, 576 (7th
Cir. 2003).
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Despite drawing this contrast, the court did not hold that
using fire to merely "facilitate" a felony was beyond the
scope of the statute. See id. at 1246-47 & n.7. Rather,
the court was simply concluding that the defendants'
facilitation argument failed because the use of fire in the
circumstances before it was not mere facilitation. Thus,
Hayward does not support Desposito's contention that mere
facilitation falls outside the statute's plain meaning.8
8
In view of the circumstances here, we need not -- and
do not -- decide whether the statute encompasses the use of fire
to "facilitate" the commission of a felony. Nevertheless, we
note our skepticism that there is any significant difference
between committing a felony and facilitating one's own felony.
When "facilitate" is used to describe an action distinct from
"committing" a crime, its meaning is commonly limited to actions
taken to assist someone else's crime. See Abuelhawa v. United
States, 556 U.S. 816, 820 (2009) (explaining that "common usage
. . . limits 'facilitate' to the efforts of someone other than a
primary or necessary actor in the commission of a substantive
crime" (emphasis added)); id. at 821 (noting that "facilitate"
has an "equivalent meaning" to "aid," "abet," and "assist");
Black’s Law Dictionary 668 (9th ed. 2009) (defining
"facilitation" as "in criminal law, the act of making it easier
for another person to commit a crime" (emphasis added)). Of
course, "facilitate" may also be used more generally to mean "to
make easier" or to "help bring about." Merriam-Webster's
Collegiate Dictionary 447 (11th ed. 2004). When used in this
sense, however, an action effecting the completion of one's own
crime can be said to both "facilitate" and "commit" that crime.
We doubt that Congress intended to exclude actions like
Desposito's from the scope of § 844(h)(1) merely because they
could also be described as facilitating or assisting his own
felony. Cf. Abuelhawa, 556 U.S. at 820 (holding that a cell
phone used to place a call about a drug sale did not "facilitate"
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Second, even assuming Hayward stood for that
proposition, Desposito's actions differ significantly from
using a cigarette lighter as a source of light or
illumination. Here, fire was critical to his scheme and
made the robbery possible. See Abuelhawa v. United States,
556 U.S. 816, 820 (2009). Using a cigarette lighter as a
light source is merely incidental to the actual crime; a
flashlight or other non-criminal tool could serve the same
purpose just as well. The fire from the cigarette lighter
poses no threat. In contrast, Desposito's fire posed a
threat to life and property, one that demanded the immediate
attention of the police. This threat was so integral to
Desposito's scheme that he even rehearsed it and decided to
use lighter fluid because the practice fire was not menacing
enough. Under these circumstances, the Seventh Circuit's
hypothetical is clearly distinguishable.
Finally, even assuming, arguendo, § 844(h)(1) does
not encompass using fire to "facilitate" a felony, the
district court instructed the jury that mere facilitation
the sale, within the common meaning of the term, even if it
"really [did] make it easier for dealers to break the law").
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was not sufficient. The jury still found Desposito guilty.
We must affirm the verdict "if the evidence, when viewed in
its totality and in the light most favorable to the
government, would permit any rational jury to find the
essential elements of the crime beyond a reasonable doubt."
United States v. Geibel, 369 F.3d 682, 689 (2d Cir. 2004).
For the reasons stated above, the jury's conclusion that
Desposito used fire to commit the bank robbery, and not
merely to facilitate it, was entirely reasonable.
Desposito also asks us to consider the legislative
history behind the Anti-Arson Act of 1982, which added using
"fire" to § 844(h)(1). See Pub. L. No. 97-298, § 2(b), 96
Stat. 1319 (1982). Because we find that Desposito's use of
fire falls within the plain language of the statute, we need
not consider any other tools of statutory interpretation.
Even if we did find the statute ambiguous, however, we note
that the legislative history would support our construction
of the statute. According to the House Report, Congress
intended to eliminate the need to prove that an explosive
was the source of a criminal fire and chose to do so by also
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criminalizing the use of "fire" to commit felonies. See
H.R. Rep. No. 97-678, at 2 (1982), reprinted in 1982
U.S.C.C.A.N. 2631, 2632. In doing so, Congress was well
aware that fire could be used to commit a variety of
different crimes, and not merely arson and insurance fraud
as Desposito contends. See id. ("Fire is used extensively
not only for the criminal purposes of extortion, terrorism
and revenge, but to conceal other crimes such as homicide,
and for fraud against insurance companies."); see also
United States v. Fiore, 821 F.2d 127, 132 (2d Cir. 1987)
(explaining that fire was added to remove the source-based
limitation imposed on the term "explosive," which was
originally intended "'to include all situations in which an
explosive or material with explosive capacity was used
criminally'" (quoting 128 Cong. Rec. H4957 (daily ed. Aug.
2, 1982) (statement of Rep. Hughes))). Using fire to divert
the police from a bank robbery is surely comparable to the
uses of fire Congress specifically intended, such as "to
conceal" a homicide. Thus, even if we considered the
legislative history, it would not support Desposito's narrow
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reading of the statute. Accordingly, we apply the statute
as written and affirm the conviction.
B. Due Process
1. Applicable Law
We review challenges to a statute's
constitutionality de novo. See United States v. Al Kassar,
660 F.3d 108, 129 (2d Cir. 2011). Due process provides a
criminal defendant with the right to "fair warning . . . in
language that the common world will understand, of what the
law intends to do if a certain line is passed." McBoyle v.
United States, 283 U.S. 25, 27 (1931) (Holmes, J.); accord
United States v. Cullen, 499 F.3d 157, 163 (2d Cir. 2007).
In determining whether the defendant's due process rights
were violated, we will consider "whether the statute, either
standing alone or as construed by the courts, made it
reasonably clear at the time of the charged conduct that
defendant's conduct was criminal." United States v. Lanier,
520 U.S. 259, 267 (1997).
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2. Application
Because we hold that the plain language of
§ 844(h)(1) proscribes Desposito's use of fire to commit
bank robbery, we also hold that the statute itself provided
him with "fair warning." If the statutory language alone
provides clear notice that certain conduct is illegal, Due
Process is satisfied and the government may prosecute such
activity without waiting for "every conceivable challenge to
a law's validity." United States v. Chestman, 947 F.2d 551,
564 (2d Cir. 1991). Indeed, prior to Desposito's challenge,
the government had prosecuted and convicted others for
similarly using fire or explosives to commit bank robbery.
See, e.g., United States v. Tucker, 253 F. App'x 718, 719-20
(10th Cir. 2007) (non-precedential order and judgment);
United States v. Ramsey, No. 01-005-04, 2006 WL 328371, at
*1-2 (E.D. Pa. Feb. 10, 2006). Because the application of
§ 844(h)(1) to defendant's conduct was clear from the face
of the statute, Desposito's conviction does not offend Due
Process.9
9
Because we conclude there is no ambiguity in the
statute, let alone a "grievous ambiguity," we also decline
Desposito's request to apply the rule of lenity. Chapman v.
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C. Attempt to Obstruct an Official Proceeding
1. Applicable Law
We also review de novo the defendant's challenge
to the sufficiency of the evidence underlying his conviction
for attempt to obstruct an official proceeding. See
Mahaffy, 693 F.3d at 123. To convict Desposito of an
attempt, the government had to prove that he "had the intent
to commit the object crime and . . . engaged in conduct
amounting to a substantial step towards its commission."
United States v. Farhane, 634 F.3d 127, 145 (2d Cir. 2011).
Here, the object crime was "corruptly . . .
obstruct[ing], influenc[ing], or imped[ing] any official
proceeding." 18 U.S.C. § 1512(c)(2). In construing the
similar "Omnibus Clause" in 18 U.S.C. § 1503(a),10 the
Supreme Court has held that "'a person is not sufficiently
charged with obstructing or impeding the due administration
United States, 500 U.S. 453, 463 (1991); United States v. Cullen,
499 F.3d 157, 164 (2d Cir. 2007).
10
The so-called Omnibus Clause makes it a crime to
"corruptly or by threats or force, or by any threatening letter
or communication, influence[], obstruct[], or impede[], or
endeavor[] to influence, obstruct, or impede, the due
administration of justice." 18 U.S.C. § 1503(a); see United
States v. Aguilar, 515 U.S. 593, 598-99 (1995).
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of justice in a court unless it appears that he knew or had
notice that justice was being administered in such court'"
because, in the absence of such knowledge, that person
"necessarily lacked the evil intent to obstruct." United
States v. Aguilar, 515 U.S. 593, 599 (1995) (quoting
Pettibone v. United States, 148 U.S. 197, 206 (1893)).
Thus, to satisfy the element of intent, the government must
show a "nexus" between the defendant's act and the judicial
proceedings; that is, there must be "a relationship in time,
causation, or logic" such that the act has "the natural and
probable effect of interfering with the due administration
of justice." Id. at 599-600 (internal quotation marks
omitted). Because of its similarity to § 1503(a), we have
previously incorporated Aguilar's "nexus requirement" into
§ 1512(c)(2). See United States v. Reich, 479 F.3d 179,
185-86 (2d Cir. 2007) (citing Aguilar, 515 U.S. at 600).
Thus, to satisfy the first element of attempt in this case,
the government had to show that Desposito's letters had the
natural and probable effect of obstructing his criminal
trial.
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To satisfy the second element, the government had
to show that the defendant took a substantial step toward
committing the crime that was "'strongly corroborative of
the firmness of the defendant's criminal intent.'" Farhane,
634 F.3d at 146-47 (quoting United States v. Stallworth, 543
F.2d 1038, 1040 & n.5 (2d Cir. 1976)). By utilizing the
"substantial step" formulation, we have effectively adopted
the Model Penal Code's more liberal approach to punishing
attempt crimes, rather than the narrower common law approach
that waited until the defendant was within dangerous
proximity to completing the crime. See id. at 146 (citing
Stallworth, 543 F.2d at 1040-41). A "substantial step" must
be "'something more than mere preparation, yet may be less
than the last act necessary before the actual commission of
the substantive crime.'" Id. at 147 (quoting United States
v. Manley, 632 F.2d 978, 987 (2d Cir. 1980)). Whether
specific conduct constitutes a substantial step depends on
"'the particular facts of each case' viewed in light of the
crime charged." Id. (internal quotation marks omitted)
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(quoting United States v. Ivic, 700 F.2d 51, 66 (2d Cir.
1983)).
2. Application
a. Nexus
The letters sufficiently demonstrate a nexus
between Desposito's actions and his criminal trial.
Throughout these letters, Desposito indicated that the
purpose of his plan was to create fraudulent evidence --
grocery bags and a can of lighter fluid bearing planted
fingerprints -- that would be admitted into evidence to
raise a reasonable doubt as to his guilt. In his initial
letter to Fortier, postmarked April 9, Desposito explained
that he wanted to plant the fake lighter fluid can "so later
on in my trial we can enter [it] into evidence and show the
can that was found ain't the one I bought. Ha ha!"
Desposito then included a "to-do made easy list" for
Fortier, in which the last direction was: "Pat yourself on
the back, you just rose reasonable doubt and saved my life."
In his second letter, postmarked April 24, he again
repeated: "[I]f you follow my instructions to a T, you'll
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raise enough reasonable doubt to save my life." Thus, the
letters clearly demonstrate Desposito's intent that the
fabricated evidence would influence his criminal trial.
Desposito argues that the evidence fails to
establish the required nexus because his plan relied on the
voluntary cooperation of others and thus obstruction was not
the "natural and probable effect" of his letters. See
Reich, 479 F.3d at 185. This argument is flawed because it
focuses on factual causation and the likelihood that
Desposito's plan would succeed, even though it is well-
established that success is not required to show the
required nexus. See Aguilar, 515 U.S. at 599. As a
component of the intent element, the proper inquiry is
whether the defendant knew his actions would result in the
obstruction of a specific judicial proceeding. See id. at
601; Reich, 479 F.3d at 185-86; United States v. Quattrone,
441 F.3d 153, 171 (2d Cir. 2006) ("[T]his rule limits
criminal liability to cases where the defendant has notice
that his wrongful conduct will affect the administration of
justice . . . ."). Thus we have found the nexus requirement
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satisfied in situations where "the discretionary actions of
a third person are required to obstruct the judicial
proceeding" if it was "foreseeable to [the defendant] that
the third party . . . would act on the [communication] in
such a way as to obstruct the judicial proceeding." Reich,
479 F.3d at 185.
Here, there was abundant evidence from which the
jury could infer that Desposito intended and believed that
the recipients of his letters would follow his instructions
and obstruct his criminal trial. When Desposito wrote to
Ljuljanaj, "I know it's asking . . . a lot, but you would be
saving my life," the jury could reasonably infer that
Desposito expected Ljuljanaj to do what he asked because
Desposito advised Fortier in another letter that "you can
trust [Ljuljanaj] with your life." That Desposito had
previously confided in Ljuljanaj about his crime and stored
the stolen money in his bedroom corroborates this inference.
Thus, a jury could reasonably conclude that it was
foreseeable to Desposito that Ljuljanaj would help him when
he sent the letters.
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Even if the letters suggest that Desposito had
some doubts about Ljuljanaj's cooperation, they reveal no
such reservations about Fortier, his half-brother. The
letters to Fortier have a clearly different tone than those
to Ljuljanaj, which include disclaimers such as:
I [am] sorry to put this much on you, and
I'll have no choice but to understand if
you don't do any of this [stuff] for
me. . . . You're a great friend and a no
to everything I'm asking of you can't
change that.
In contrast, Desposito's letters to Fortier dispense with
such niceties, beginning: "I got to keep this short and
sweet because I need you to focus on saving my life." They
then proceed to list directions in the imperative voice,
along with words of encouragement such as: "You got this.
I know you do."
These letters demonstrate that Desposito believed
Fortier would comply upon receiving his letters. Because
the letter to Fortier in the first mailing instructed him to
send Desposito a care package containing A&P grocery bags,
Desposito advised Ljuljanaj in an accompanying letter that
"the next time I send you mail, it will have a bag with my
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prints on it to give to [K]ris." When he did not receive
the bags, Desposito apparently assumed Fortier never
received his instructions as he sent nine more letters
directing either Ljuljanaj to deliver the instructions to
Fortier or Fortier to retrieve them. Even after Desposito
wrote in his third letter to Ljuljanaj to "just disregard
everything," he still believed Fortier would carry out the
plan because he sent at least one more letter to his father,
containing a message for Fortier to "contact Besni[c]k, see
if he's gotten any of the three letters I sent him." Based
on this evidence, a jury could conclude beyond a reasonable
doubt that Desposito knew the natural and probable
consequence of sending his letters was that Fortier would
create false evidence that would obstruct his criminal
trial. Thus, the nexus requirement was satisfied.
b. Substantial Step
Desposito argues that, under our precedent, merely
communicating a plan to others cannot constitute a
"substantial step." Desposito points primarily to our
holding in United States v. Delvecchio, 816 F.2d 859 (2d
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Cir. 1987), that "a verbal agreement alone, without more, is
insufficient as a matter of law to support an attempt
conviction." Id. at 862. Based on this holding, Desposito
argues that he cannot be convicted unless the government
shows both that the letter recipients agreed to carry out
the plan and that he then took an additional "substantial
step" beyond that agreement.
Desposito takes our holding in Delvecchio out of
context. There are no bright line rules for determining
what actions amount to a "substantial step" and thus no
requirement that the government show an agreement or any
other specific circumstance.11 See Farhane, 634 F.3d at
147; see also Delvecchio, 816 F.2d at 861 ("Although the
verbal formula for what constitutes a substantial step is
clear, courts have not always found it easy to decide
whether a defendant's conduct has crossed over the line from
'preparation' to 'attempt.'"). The analysis depends on the
11
Indeed, in this case, to require the government to show
an agreement plus an additional step would convert the crime of
attempt into the crime of conspiracy. See United States v.
Mahaffy, 693 F.3d 113, 123 (2d Cir. 2012) (outlining elements of
conspiracy as, generally, the intent to commit the object crime,
an agreement, and an overt act in furtherance of the agreement).
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crime charged and whether the act tended to cause that
particular crime to occur. See Farhane, 634 F.3d at 147.
Thus, as we have previously clarified, the agreement to
purchase heroin in Delvecchio did not amount to a
substantial step towards possessing heroin only because
there was no "act to effect possession, such as acquisition,
or attempted acquisition, of the purchase money, or travel
to the agreed-on purchase site." Id. (emphasis added).
Thus, our inquiry here turns on whether Desposito
took any substantial steps to effect the obstruction of his
criminal trial. The evidence clearly established that he
did. First, Desposito wrote fifteen letters, ten sent to
Ljuljanaj and five sent to his family, to implement his
scheme to obstruct justice. In these letters, Desposito not
only set out directions for Fortier and Ljuljanaj to falsify
evidence, but he attempted to deceive Mastrarrigo into
putting her fingerprints on the new can of lighter fluid.
Second, Desposito mailed these letters from jail in at least
four sets of mailings. When nothing resulted from his
initial mailing to Ljuljanaj, he sent a second, lighter
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envelope, believing the first package had never been
delivered because it was too heavy. When nothing came of
the second mailing, Desposito changed course by sending
another letter to Ljuljanaj, telling him to disregard his
prior letters, and sending five additional letters directly
to his family, instructing Fortier to retrieve the plans
from Ljuljanaj. As a whole, these actions demonstrate that
Desposito tried to do everything he possibly could from jail
to bring his plan to fruition and effect the obstruction of
his trial. Thus, a rational jury could find beyond a
reasonable doubt that his persistent writing and mailing of
letters constituted substantial steps toward obstructing his
criminal trial. As the evidence demonstrated both a nexus
with the criminal trial and substantial steps, we affirm
Desposito's conviction for attempting to obstruct an
official proceeding.
D. Admissibility of Evidence
1. Applicable Law
Finally, we review the district court's
evidentiary ruling for abuse of discretion. See United
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States v. Cadet, 664 F.3d 27, 32 (2d Cir. 2011). Under Rule
608(b) of the Federal Rules of Evidence, during cross-
examination, district courts may permit questioning about
"specific instances of a witness's conduct . . . if they are
probative of the [witness's] character for truthfulness or
untruthfulness." Fed. R. Evid. 608(b)(1); see Lewis v.
Baker, 526 F.2d 470, 475 (2d Cir. 1975). Even if the
specific instance is probative of the witness's veracity,
the court still must balance that probative value against
the risk of unfair prejudice to the defendant, pursuant to
Rule 403. See Fed. R. Evid. 608 advisory committee's note;
United States v. Weichert, 783 F.2d 23, 25 (2d Cir. 1986).
Under Rule 403, the evidence may be excluded if its
prejudicial effect substantially outweighs its probative
value. See Fed. R. Evid. 403. We afford great deference to
the district court's balancing under Rule 403, see United
States v. Contorinis, 692 F.3d 136, 144 (2d Cir. 2012), and
we will disturb it only if we find the decision to be
arbitrary and irrational, see United States v. Mercado, 573
F.3d 138, 141 (2d Cir. 2009).
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2. Application
Although there was a risk the jury would consider
Desposito's pending New Jersey state criminal trial as
evidence of his criminal propensity, we cannot say that the
district court abused its discretion in concluding that this
risk did not substantially outweigh the probative value of
the evidence in light of Desposito's testimony during his
direct examination. When a defendant offers an exculpatory
explanation for the government's evidence, he "opens the
door" to impeachment of his credibility, even by previously
inadmissible evidence. See United States v. Elfgeeh, 515
F.3d 100, 128 (2d Cir. 2008). Because the plan to dissuade
a witness from testifying in the New Jersey prosecution
severely undermined Desposito's innocent explanation for the
plan to fabricate evidence in this case, it became highly
probative of his credibility after his testimony on direct
examination. At the same time, any risk of prejudice was
mitigated because the district court issued a timely and
appropriate limiting instruction and the government never
revealed what the underlying New Jersey crime was. See
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United States v. Williams, 205 F.3d 23, 34 (2d Cir. 2000)
(finding no undue prejudice where the other criminal charges
are less serious than the charged crime and the district
court issued a proper limiting instruction); United States
v. Livoti, 196 F.3d 322, 326 (2d Cir. 1999) (same). We
cannot say that the district court's Rule 403 balancing was
arbitrary or irrational. Therefore, the district court did
not abuse its discretion by permitting impeachment on this
topic.
CONCLUSION
We conclude that the evidence was sufficient to
prove that Desposito used fire to commit the bank robbery,
and we are satisfied that his conviction did not offend Due
Process. We also conclude there was sufficient evidence to
support his conviction for attempting to obstruct an
official proceeding. Finally, the district court did not
abuse its discretion by allowing the government to cross-
examine Desposito about his plan to obstruct his New Jersey
state criminal trial. Accordingly, the judgment of
conviction is AFFIRMED.
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