United States v. Rasheed

981 F.3d 187

UNITED STATES of America, Appellee,

v.Abdul RASHEED, Defendant-Appellant.

Docket No. 18-3479-cr

August Term, 2019

United States Court of Appeals, Second Circuit.

Argued: May 7, 2020

Decided: November 25, 2020

Martin J. Vogelbaum, Assistant Federal Public Defender, Federal Public Defender's Office, Western District of New York, Buffalo, N.Y., for Defendant-Appellant Abdul Rasheed.

Katherine A. Gregory, Assistant United States Attorney, for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, N.Y., for Appellee United States of America.

Before: LEVAL, LOHIER, and PARK, Circuit Judges.

LOHIER, Circuit Judge:

Abdul Rasheed challenges a November 13, 2018 judgment of the United States District Court for the Western District of New York (Siragusa, J. ) convicting him after a jury trial of one count of escape, in violation of 18 U.S.C. §§ 751(a) and 4082(a), and sentencing him to the statutory maximum term of imprisonment of sixty months, as well as a three-year term of supervised release. On appeal, Rasheed argues that his conviction should be vacated because venue was improper in the Western District of New York and because certain statements that the District Judge made to the jury violated his right to a fair trial. He also seeks remand for resentencing based on asserted errors in the calculation of his advisory sentencing range under the United States Sentencing Guidelines (U.S.S.G.) and in the imposition of three conditions of supervised release, including a standard risk-notification condition that has since been modified in a district-wide standard order of the Western District of New York to correct a legal infirmity. For the reasons that follow, we affirm the judgment as modified by the Western District of New York's standing order.

BACKGROUND

In March 2015 the District Court sentenced Rasheed to a twelve-month term of imprisonment for violating conditions of a federal term of supervised release. He was initially incarcerated at the United States Penitentiary Lee (USP Lee) in Jonesville, Virginia.

In February 2016 Rasheed became eligible to serve the remainder of his custodial sentence at a residential reentry center (RRC), an institutional facility contracted by the United States Bureau of Prisons (BOP) to provide inmates nearing the end of their custodial sentences with helpful programs and services to facilitate reentry into the community. While assigned to an RRC, inmates remain in BOP custody and are authorized to leave the facility only with prior approval. Rasheed applied and was approved to serve the remainder of his sentence at Volunteers of America (VOA), an RRC in Rochester, New York, which is located in the Western District of New York. He was granted an unaccompanied furlough to travel there from USP Lee.

Rasheed's furlough agreement outlined the conditions of his furlough and his approved travel schedule. He was scheduled to depart USP Lee at 7:00 a.m. on March 1, 2016 with a town driver, who would drive him to a bus station in Kingsport, Tennessee; from there, Rasheed was scheduled to travel by bus departing Kingsport at 9:10 a.m. and arriving in Rochester by 11:50 a.m. the following day, with specified layovers and transfers en route; and he was required to report to VOA, which was walking distance from the Rochester bus station, no later than 12:00 p.m. on March 2, 2016.

Rasheed signed a statement on his furlough application indicating that he understood that the "furlough only extend[ed] the limits of [his] confinement and that [he would] remain in the custody of the Attorney General of the United States" at all times. Ex. App'x at 3. He further agreed that any "fail[ure] to remain within the extended limits of this confinement ... shall be deemed as escape from custody of the Attorney General," punishable under 18 U.S.C. § 751 and 18 U.S.C. § 4082. Id.; see id. at 4.

On March 1, 2016, Rasheed left USP Lee, equipped with his itinerary, bus tickets, and a debit card worth about $50, but he failed to report to VOA in Rochester. By April 4, 2016, a task force coordinated by the United States Marshal Services (USMS) still had not located him, and a warrant for his arrest was issued.

In late October 2016, nearly eight months after Rasheed failed to report to VOA, USMS discovered that Rasheed was in jail in Allegheny County, Pennsylvania, having been arrested in connection with a fatal shooting in Pittsburgh. Rasheed was later charged in Pennsylvania state court with multiple felonies; he eventually pleaded guilty to, among other charges, third-degree murder and aggravated assault.

In November 2016 a grand jury in the Western District of New York indicted Rasheed on one count of escape, in violation of 18 U.S.C. §§ 751(a) and 4082(a). Rasheed elected to proceed to trial. During the trial he and the Government stipulated that in 2015 Rasheed had been convicted of federal offenses in the Western District of New York and sentenced to a term of imprisonment and supervised release. The parties further stipulated that, as a result of his sentence, Rasheed "was committed to the custody of the United States Bureau of Prisons, where he was lawfully confined in an institution and facility at the direction of the Attorney General." Ex. App'x at 1.

At the close of the Government's case, Rasheed moved for a judgment of acquittal. He argued that the Government had failed to prove venue because there was no evidence that Rasheed "was ever in the Western District of New York" and, therefore, "no crime [was] committed [t]here." Joint App'x at 433. The Government replied that venue was proper because Rasheed was charged with "fail[ing] to remain within the extended limits of his confinement." Id. at 434. And after March 2, 2016, the Government contended, the VOA RRC, which is located in the Western District of New York, comprised "the limits of his confinement." Id. The District Court considered the issue of venue in the case of an escape from an unaccompanied transfer to be an "open question" in this Circuit, but it agreed with the Government and denied Rasheed's motion. Id. at 435.

Before the jury began to deliberate, the District Court denied Rasheed's nunc pro tunc motion for a mistrial based on two statements that the District Court had made during jury selection, the first alerting prospective jurors that Rasheed was currently in custody, and the second directing them not to consider that fact as bearing on Rasheed's guilt or innocence.¹ In denying the motion at such a late stage of the trial, the District Court provided the following curative jury instruction, which both parties found acceptable: "[T]he fact that Mr. Rasheed is in custody has no bearing on your determination of his guilt or nonguilt of the charge for which he stands accused and must not be considered by you in any way in reaching your verdict." Id. at 499. The jury quickly returned a guilty verdict on the escape charge.

At sentencing, the Government advocated for a statutory maximum sentence of sixty months’ imprisonment, to be served consecutively to all other state and federal sentences previously imposed on Rasheed. Defense counsel urged the District Court to impose a sentence concurrent to Rasheed's undischarged state term of imprisonment, but counsel did not otherwise challenge the calculation of Rasheed's Guidelines range of thirty to thirty-seven months. The District Court ultimately imposed an above-Guidelines sentence of sixty months’ imprisonment, to run consecutively to Rasheed's Pennsylvania state sentence, and a three-year term of supervised release.

As relevant to this appeal, the judgment also included two special conditions of supervised release, each of which required Rasheed to participate in treatment programs and "to contribute to the cost of services rendered" by those programs. Sp. App'x at 5. A third, standard condition of supervised release warned Rasheed that "[i]f the probation officer determines that you pose a risk to another person (including an organization), the probation officer may require you to notify the person about the risk." Id. at 4.

DISCUSSION

On appeal, Rasheed challenges his conviction based on improper venue and on due process grounds. He also challenges his sentence based on asserted errors in the calculation of the advisory Guidelines range and the District Court's imposition of the cost-contribution and risk-notification conditions of supervised release. We address each of these challenges in turn.

I

"[V]enue in federal criminal cases is controlled by a complicated interplay of constitutional provisions, statutes, and rules." United States v. Rowe, 414 F.3d 271, 277 (2d Cir. 2005) (quotation marks omitted). A criminal defendant must be tried in the district where the crime was committed. U.S. Const. amend. VI ; Fed. R. Crim. P. 18. The government bears the burden to prove by a preponderance of the evidence that venue is proper in the district of prosecution. United States v. Kirk Tang Yuk, 885 F.3d 57, 71 (2d Cir. 2018). Because the relevant facts in this case are not in dispute, Rasheed's venue challenge presents a question of law, which we review de novo. United States v. Tzolov, 642 F.3d 314, 318 (2d Cir. 2011).

As an initial matter, we consider whether the crime of conviction itself tells us how to determine the situs of the crime. Recall that Rasheed was charged with violating 18 U.S.C. §§ 751(a) and 4082(a). Section 751(a) criminalizes an "escape[ ] or attempt[ ] to escape from the custody of the Attorney General or his authorized representative, or from any institution or facility in which he is confined by direction of the Attorney General." Section 4082(a), in turn, provides that "[t]he willful failure of a prisoner to remain within the extended limits of his confinement, or to return within the time prescribed to an institution or facility designated by the Attorney General, shall be deemed an escape from the custody of the Attorney General" within...