United States v. Leroux

36 F.4th 115

UNITED STATES of America, Appellee,

v.Paul Calder LEROUX, aka Johan Smit, Defendant-Appellant.^*

Docket Nos. 20-2184-cr

20-3410-cr

August Term, 2021

United States Court of Appeals, Second Circuit.

Argued: March 7, 2022

Decided: June 3, 2022

Jeffrey Chabrowe, The Law Office of Jeffrey Chabrowe, New York, NY, for Defendant-Appellant Paul Calder Leroux.

Michael D. Lockard, Assistant United States Attorney (Won S. Shin, Assistant United States Attorney, on the brief), for Damian Williams, United States Attorney for the Southern District of New York, New York, NY, for Appellee United States of America.

Before: CHIN, LOHIER, and ROBINSON, Circuit Judges.

LOHIER, Circuit Judge:

This appeal is our first opportunity to consider what findings a district court must make under the Coronavirus Aid, Relief, and Economic Security Act ("CARES Act") before it proceeds to sentence a defendant by videoconference rather than in person. Because the question of what a district court must do under these circumstances is likely to recur given the pandemic's duration, we address and resolve the issue by opinion in this case. Finding no error in the conclusion of the United States District Court for the Southern District of New York (Abrams, J. ) that the CARES Act's requirements for proceeding by videoconference were satisfied in Leroux's case, we AFFIRM .

BACKGROUND

By the time he was arrested and charged in 2012, Paul Calder Leroux, the appellant, had led a global criminal empire, based in the Philippines, for roughly eight years. To give a sense of the scope and viciousness of Leroux's crimes, we need only excerpt a portion of what the District Court said at his sentencing years later, in 2020:

I have before me a man who has engaged in conduct in keeping with the villain in a James Bond movie. He operated a mercenary team that committed beatings, shootings, and firebombs. He participated in the murder for hire of at least seven people.

And let's just pause there for a minute. There are seven people -- Herbert Chu, David Smith, Chito, Naomi Edillor, Catherine Lee, Joe Frank Zuñiga, and Bruce Jones -- whose loved ones will never see them, hold them, or speak to them again. In the case of Catherine Lee, she was shot in the face and her lifeless body was left on a pile of garbage. Others were shot and their bodies anchored to boats and sunk in the water. The bodies of others still have not yet been found.

Mr. Leroux trafficked in illegal pharmaceuticals: methamphetamine and cocaine.

He smuggled gold, chemicals, and weapons on several continents. He ran a weapons research and development program for the Iranian government. He attempted to acquire surface-to-air missiles. He laundered funds from a pharmaceutical company. He planned a coup in the Seychelles. And he bribed government officials in the Philippines, China, Laos, Africa, and Brazil. If Paul Calder Leroux had a situation that he could bribe or kill his way out of, he did so.

App'x 245–46.

In 2014, after his arrest, Leroux began to cooperate with the Government, waived indictment, and pleaded guilty to those crimes for which jurisdiction existed in the United States: conspiring to import over 500 grams of methamphetamine into the United States, in violation of 21 U.S.C. § 963 ; violating the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq., and the Iranian Transactions and Sanctions Regulations, 31 C.F.R. Part 561; conspiring to commit computer hacking, in violation of 18 U.S.C. § 1030(a)(2) and (b) ; being an accessory-after-the-fact to securities fraud, in violation of 18 U.S.C. § 3 ; conspiring to violate the Food, Drug, and Cosmetic Act, in violation of 18 U.S.C. § 371 ; conspiring to commit mail and wire fraud, in violation of 18 U.S.C. § 1349 ; and conspiring to launder money, in violation of 18 U.S.C. § 1956(h).

After Leroux testified as a cooperating witness at the trial of some of his former criminal associates, the District Court set sentencing for August 2019. For reasons not relevant to this appeal, that proceeding was adjourned, and on March 9, 2020, the District Court rescheduled sentencing for May 29, 2020—as we now know, but as the District Court may not then have foreseen, some two months after the start of the COVID-19 pandemic in the United States.

On March 27, 2020, Congress enacted the CARES Act, which authorizes the expanded use of videoconferencing and telephone conferencing in criminal proceedings if certain conditions are met. See Pub. L. No. 116-136, § 15002(b), 134 Stat. 281, 528–30 (2020). A few days later, the Judicial Conference of the United States, the administrative policy-making body for the federal courts, found that "emergency conditions due to the national emergency declared by the President with respect to COVID-19 will materially affect the functioning of the federal courts generally." Administrative Office of the U.S. Courts, Judiciary Authorizes Video/Audio Access During COVID-19 Pandemic (Mar. 31, 2020), https://www.uscourts.gov/news/2020/03/31/judiciary-authorizes-videoaudio-access-during-covid-19-pandemic (quotation marks omitted). Meanwhile, in the Southern District of New York, then-Chief Judge Colleen McMahon issued a standing order on March 30, 2020 that found that "felony pleas under Rule 11 ... [and] felony sentencings under Rule 32 of the Federal Rules of Criminal Procedure" could not "be conducted in person without seriously jeopardizing public health and safety," and that "video teleconferencing, or telephone conferencing if video conferencing [were] not reasonably available," could be used "with the consent of the defendant ... after consultation with counsel," and after "a finding by the presiding judge that the proceeding [could not] be further delayed without serious harm to the interests of justice." Standing Order M10-468 at 3, In re: Coronavirus/COVID-19 Pandemic, No. 20-MC-176 (S.D.N.Y. Mar. 30, 2020), ECF No. 1 (the "Standing Order"); App'x at 117–19. The Standing Order provided that "because the CARES Act does not require the consent of a defendant ... to be in writing, such consent may be obtained in whatever form is most practicable under the circumstances, so long as the defendant's consent is clearly reflected in the record." Id. At all times relevant to this appeal, the District Court's authorization to conduct remote felony pleas and sentencings remained in effect, and indeed it remains in effect to this day. See Eighth Amended Standing Order M10-468, In re: Coronavirus/COVID-19 Pandemic, No. 20-MC-176 (S.D.N.Y. Apr. 6, 2022), ECF No. 9.

After another brief adjournment of the May 2020 sentencing date due to the COVID-19 pandemic, and under the authorization provided by the CARES Act and the Standing Order, the District Judge decided to sentence Leroux by videoconference on June 12, 2020. At the start of the sentencing hearing, Judge Abrams confirmed that Leroux, who was "accessing th[e] video conference from [a detention] facility," App'x 211, could hear and see her and the other participants in the videoconference, including his attorney. After informing Leroux that he could "speak privately with [his] attorney" by being moved with counsel "into a remote breakout room where no one else [could] see [him] or hear [him]," App'x 211, Judge Abrams established that Leroux understood and waived his right to be physically present in the courtroom:

THE COURT: So I understand from defense counsel,

Mr. Leroux, that you wish to waive your physical presence and proceed by video conference today. Is that correct?

THE DEFENDANT: Yes, your Honor.

THE COURT: And did your attorney explain to you that you have a right to be present in court when you are sentenced and that by --

THE DEFENDANT: Yes, your Honor.

THE COURT: -- consenting to proceed by video conference you are waiving that right? Do you understand that?

Yes? Is that right, Mr. Leroux?

THE DEFENDANT: Yes, your Honor.

App'x 211–12. Judge Abrams also asked Leroux's attorney to explain "the process by which" the attorney "discussed with Mr. Leroux his right to be present and his willing and voluntary waiver of that right." App'x 212. Leroux's attorney responded as follows:

Your Honor, I discussed with Mr. Leroux the option of doing the sentencing remotely or doing it live in a courtroom and ... when that potentially could be ..., and how this would be potentially different. And Mr. Leroux, after a lengthy discussion, said that he wanted to go forward with this, doing it by video as we're doing it today.

App'x 212. Having heard from both Leroux and his attorney on the issue, Judge Abrams found that Leroux had "knowingly and voluntarily waived the right to be physically present for this sentencing." App'x 213. Judge Abrams also determined, without elaboration, that Leroux's sentencing could not "be further delayed without serious harm to the interest of justice." App'x 213.

The District Court then proceeded to the substance of the sentencing hearing. First, it adopted the factual findings and Guidelines calculations contained in Leroux's Pre-Sentence Report, to which neither party objected. Then, after considering each party's arguments, it sentenced Leroux principally to 25 years’ imprisonment to be followed by a lifetime term of supervised release.

After the sentencing hearing, the District Court identified an error in how it had allocated sentences for certain counts of conviction.¹ To correct the error, it held a supplemental sentencing hearing by videoconference on September 10, 2020. At the start of the hearing the District Court, as it had at the prior sentencing, confirmed that Leroux wished to proceed by videoconference and that the waiver of his right to be physically present in court was both knowing and voluntary. And the court again found that the proceeding could not be further delayed without serious harm to the interests of justice. This time, however, the District Court provided more justification: moving forward with the hearing without delay,...