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Defendant is Charged with Robbery

The Facts:

In the early fall of 1986, defendant-appellant and his friend travelled from the friend’s home in Fort Lauderdale, Florida to New York. On 10 October 1986, defendant-appellant dropped his friend off at a shopping mall on Long Island, New York. When he returned a few hours later, he told his friend that he had robbed a bank during his absence. The friend noticed red stains on the interior of defendant-appellant’s car, which later proved to have come from a red dye bomb attached to the stolen money bags. A New York Criminal Lawyer said after defendant-appellant rejoined his friend, they, the couple, used some of the stolen money to pay for lodging in a local hotel.

On 13 October 1986, or three days later, defendant-appellant was arrested by agents of the Federal Bureau of Investigation (FBI) and detectives of the Suffolk County, New York Police Department. He was charged under New York state law with the armed robbery. Defendant-appellant’s friend was also apprehended by the FBI. She immediately agreed to cooperate with their investigation of defendant-appellant, and several days later testified before a New York state grand jury in connection with both the 10 October 1986 bank robbery and another robbery allegedly committed by defendant-appellant in 2 September 1986. Defendant-appellant’s friend was not charged in either of these crimes, and returned home to Fort Lauderdale after her appearance before the grand jury.

Thereafter, defendant-appellant was indicted on three counts bank robbery. A Bronx Criminal Lawyer said he was incarcerated at the Suffolk County Correctional Institute on Long Island, New York while awaiting trial. In January 1988, the aforementioned friend who testified received an envelope in the mail bearing a Long Island postmark. The envelope contained a letter and the front cover of a greeting card. The letter contained threats of physical violence against her if she accepted a subpoena to testify in New York against an unnamed person. The letter was signed, “A friend of a friend.” The greeting card was captioned, “First Annual Reunion of the ‘I was hit on the head by a falling safe and lived to tell about it’ club.” The friend received two other threatening letters in March and April 1988. Both letters were postmarked from Long Island, and each warned her against testifying in an upcoming trial in New York.

On 19 May 1988, at the request of the Suffolk County District Attorney, a Special Agent of the FBI served the friend with a subpoena to appear and testify in the state prosecution of defendant-appellant for armed robbery. At that time she turned over to the FBI agent the three threatening letters she had received earlier in the mail. However, on 20 July 1988, defendant-appellant pled guilty to the three counts of bank robbery. Thus, the friend did not have to appear as a witness against defendant-appellant.

On 25 January 1989, a federal grand jury in the United States District Court for the Southern District of Florida returned a three-count superseding indictment against defendant-appellant charging him with mailing a threatening communication with intent to extort a thing of value in violation of 18 U.S.C. § 876. Each count was directed to one of the three letters mailed to the friend from Long Island in January, March, and April of 1988. The thing of value referred to in each count of the indictment was the friend’s testimony linking defendant-appellant to two of the robberies for which he was prosecuted in state court. The evidence at defendant-appellant’s federal trial disclosed that the letters were typed on two models of typewriters owned by the Suffolk County prison library. Logs from the prison library established that defendant-appellant used the typewriters about the time that each of the threatening letters was mailed from Long Island. Additionally, the postmark on the envelopes contained the first three digits of the post office that processed the mail from the Suffolk County prison, and his fingerprints were detected on the 13 April 1988 letter. Consequently, defendant-appellant was convicted on all three counts. The district court departed from the sentencing guideline range and imposed a sentence of 105 months to run consecutively to the state sentence received in the bank robbery convictions.

The Ruling:

Under the rules, if a criminal statute is subject to two reasonable constructions, the harsher may be applied to penalize a defendant only when Congress has spoken in clear and definite language.

Here, defendant-appellant’s conviction can only be affirmed if the term thing of value unambiguously covers intangible considerations. As the Second Circuit Court of Appeals noted in the case of United States v. Girard, Congress’ frequent use of thing of value in various criminal statutes has evolved the phrase into a term of art which the criminal courts generally construe to envelope both tangibles and intangibles. This broad interpretation is based upon the recognition that monetary worth is not the sole measure of value. The conduct and expectations of both the defendant and the subject of the extortionate threat can also establish whether an intangible objective is a thing of value. The testimony of a key government witness has previously been held to be a thing of value within the meaning of § 876 based upon the contents of a threatening letter from the defendant to the witness and the witness’s testimony that she valued the right to testify against the defendant. Thus, the phrase thing of value is a clearly defined term that includes intangible objectives, and that the evidence was sufficient to establish that defendant-appellant mailed a threatening letter with intent to extort a thing of value from the friend; the testimony linking him to two of the state bank robbery charges pending against him.

Moreover, a New York Sex Crimes Lawyer said the court finds that defendant-appellant’s two other contentions concerning § 876 are also without merit. First, he maintains that, even if an intangible purpose can be characterized as a thing of value, the friend never testified that she placed any value on the right to testify against him. However, defendant-appellant’s letters to the friend makes it apparent that her testimony was valuable to him. As we have stated, the conduct and expectations of a defendant can establish whether an intangible objective is a thing of value. Thus, it was not necessary for the friend herself to place value on her right to testify. Second, defendant-appellant claims that the friend’s testimony was merely a contingency to which no value could be attached because it was not needed after he pled guilty to the bank robbery charges. Defendant-appellant’s subsequent actions, though, cannot vitiate the value that he placed upon her testimony at the time that he mailed the extortionate threats. His criminal offense was completed when he mailed the threatening letters with intent to extort a thing of value. Thus, it is immaterial whether the friend actually testified in court.

First, on the issue that the district court abused its discretion by admitting into evidence his three bank robbery convictions:

The friend’s testimony was an integral and natural part of the witness’s accounts of the circumstances surrounding the offenses for which defendant-appellant was indicted. The evidence of the two bank robbery convictions of which the friend had direct knowledge was therefore inextricably intertwined with the charged offense of mailing a threatening communication with intent to extort a thing of value, and was thus admissible even though it impacted negatively upon defendant-appellant’s character. Accordingly, the court concludes that the district court did not abuse its discretion in admitting evidence of defendant-appellant’s prior bank robbery convictions.

Nonetheless, defendant-appellant’s third bank robbery conviction was not inextricably intertwined with the offense charged in the federal indictment because the friend’s testimony did not relate to the third bank robbery. Therefore, she would not have been a witness in the prosecution of that offense. As a result, defendant-appellant’s third bank robbery conviction could be said to be irrelevant and prejudicial to his defense in the federal prosecution of his § 876 offenses. However, prejudicial testimony will not mandate a mistrial when there is other significant evidence of guilt which reduces the likelihood that the otherwise improper testimony had a substantial impact upon the verdict of the jury. After reviewing the record, the court is not convinced that a new trial is mandated in light of the other overwhelming evidence of defendant-appellant’s guilt.

Second, on the issue that defendant-appellant’s sentence of 105 months imprisonment resulted from an incorrect application of the United States Sentencing Guidelines (USSG):

The guidelines characterize the offense conduct under § 2A6.1 as sending Threatening Communications, whereas the offense conduct under § 2B3.2 is denominated as Extortion by Force or Threat of Injury or Serious Damage. The court agrees with the sentencing criminal court that the offense description contained in § 2B3.2 more fully encompasses the conduct charged in the indictment against defendant-appellant, and that the court utilized the appropriate base offense level.

Third, on the issue that the sentence imposed by the court was an improper departure from the guidelines:

A review of the sentencing court’s departure above Category VI necessitates a three-step analysis. First, it must be determined whether the departure is legally justified; second, whether the departure is factually justified; and third, whether the departure is reasonable.

With respect to the first step, pursuant to the guidelines, a prior sentence that was not used to calculate a defendant’s criminal history category can justify a departure from the guidelines range. The guidelines also authorize a departure above Category VI where the guidelines range does not adequately reflect the seriousness of the defendant’s past criminal conduct. Here, the sentencing court’s recitation makes clear that it departed from the guidelines range pursuant to § 4A1.3 based upon the fact that two of defendant-appellant’s bank robbery convictions were not counted towards his criminal history points. Thus, the court finds that the departure was legally justified.

With respect to the second step, an appellate court reviews the entire record from the sentencing hearing, including the sentencing court’s reliance upon the PSI, to assess whether the district court complied with the requirement that it state with particularity the reasons for the upward departure. The sentencing criminal court in this case specifically stated that it departed from the guidelines after reviewing the PSI. The PSI recited that two of defendant-appellant’s bank robbery convictions had been consolidated for sentencing purposes, and so only one conviction had been counted in determining his criminal history points. Predicated on the report, the sentencing judge stated in open court that a Category VI criminal history did not adequately reflect the seriousness of defendant-appellant’s criminal history. After reviewing the sentencing hearing transcript and the PSI, the court finds that the sentencing court complied with 18 U.S.C. § 3553(c)(2) by stating the specific reasons for its departure from the applicable guidelines range.

With respect to the third and last step, in evaluating whether the extent of a departure is unreasonable, a reviewing court must look to the statutory factors to be considered in imposing a sentence and the reasons for the defendant’s particular sentence as stated by the sentencing court. As mandated by law, one of the factors that the sentencing court must consider is the defendant’s history. As previously pointed out, the departure in this case was predicated on defendant-appellant’s history of two prior bank robbery convictions that were not counted for purposes of calculating his criminal history points. The sentencing court increased defendant-appellant’s criminal history points to a total of 23 by adding three criminal history points for each of his uncounted bank robbery convictions. This score placed defendant-appellant in a specific extrapolated criminal history category of nine. As a result, it was unnecessary for the court to explain why it was not utilizing the ranges for extrapolated categories VII and VIII. Also, the sentence imposed of 105 months is well within the statutory range of twenty years (240 months). Thus, the court cannot say that the extent of the upward departure is unreasonable.

Accordingly, the judgment and sentence of the district court is affirmed.

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