United States v. Sealed Defendant One

49 F.4th 690

UNITED STATES of America, Appellee,

v.SEALED DEFENDANT ONE, Defendant-Appellant.^*

No. 21-118

August Term 2021

United States Court of Appeals, Second Circuit.

Submitted: May 11, 2022

Decided: September 21, 2022

Jeffrey Chabrowe, New York, NY, for Defendant-Appellant Sealed Defendant One.

Andrew DeFilippis (Sam Adelsberg, Karl Metzner, on the brief), Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY, for Appellee United States of America.

Before: Newman, Chin, and Sullivan, Circuit Judges.

Richard J. Sullivan, Circuit Judge:

Sealed Defendant One (the "Sealed Defendant") appeals from the judgment of conviction entered by the district court (Seibel, J. ) following his guilty plea to one count of transmitting a threat in interstate commerce in violation of 18 U.S.C. § 875(c), one count of threatening to assault a federal law enforcement officer in violation of 18 U.S.C. § 115(a)(1)(B), and one count of obstruction of justice in violation of 18 U.S.C. § 1505.¹ At a sentencing proceeding conducted by videoconference and under seal, the district court sentenced Sealed Defendant principally to eighty-four months’ imprisonment. On appeal, Sealed Defendant argues that (1) the government breached the plea agreement, (2) his sentence was procedurally unreasonable, and (3) the district court erred in conducting his sentencing by videoconference.

For the reasons explained below, we conclude that (1) the plea agreement expressly provided for the government to take the very actions Sealed Defendant now characterizes as breaches of that agreement, (2) the district court gave adequate notice and identified adequate factual support for the sentencing variances and enhancements it applied, and (3) Sealed Defendant knowingly and voluntarily waived his right to be physically present at sentencing. With respect to point (3), we also hold – as a matter of first impression – that sealed sentencings conducted by videoconference do not implicate Federal Rule of Criminal Procedure 53 ’s prohibition on "the broadcasting of judicial proceedings from the courtroom" or the procedural requirements associated with the CARES Act's exception to Rule 53. Accordingly, we affirm the judgment of the district court.²

I. BACKGROUND

For over two decades, Sealed Defendant served the Federal Bureau of Investigation (the "FBI" or the "Bureau") as a paid confidential source on sensitive criminal and counterterrorism investigations. Toward the end of that tenure, however, Sealed Defendant's behavior led the FBI to doubt his discretion and trustworthiness. As a result, the FBI withdrew Sealed Defendant's authorization to conduct operational investigative activities for the Bureau and informed him that he would no longer be tasked on FBI investigations. Sealed Defendant reacted poorly to this news, sending a series of text messages to three FBI Agents and Officers with whom he had previously worked, threatening to kill them. Based on this conduct, the government charged Sealed Defendant with making threats in interstate communications and threatening to assault a federal law enforcement officer, in violation of 18 U.S.C. §§ 875(c) and 115(a)(1)(B), and a magistrate judge issued a warrant for his arrest. After being taken into custody, Sealed Defendant directed his wife to alert several suspected terrorists that they were subjects of ongoing FBI counterterrorism investigations, to offer them Sealed Defendant's assistance in evading capture, and then to destroy the evidence of such communications. Based on this conduct, the government additionally charged Sealed Defendant with obstruction of justice, in violation of 18 U.S.C. § 1505.

In late 2020, Sealed Defendant entered into an agreement with the government to plead guilty to all three charges. The plea agreement provided for a Sentencing Guidelines range of forty-six to fifty-seven months’ imprisonment (the "Stipulated Guidelines Range"). It also provided that either party could seek a sentence outside of the Stipulated Guidelines Range, and "make all appropriate arguments" in the event that the Probation Office were to calculate a Guidelines range "different from [the range] stipulated to." App'x at 9–10. Pursuant to the plea agreement, Sealed Defendant pleaded guilty to all three charges in a September 2020 plea hearing conducted – with Sealed Defendant's explicit consent – by videoconference. Due to the sensitivity of the national-security issues implicated in this case, and to protect Sealed Defendant from retaliation for his previous role as a law-enforcement cooperator, the district judge held the initial plea hearing under seal and subsequently ordered that the entire case be kept under seal.

Following Sealed Defendant's guilty plea, the Probation Office prepared a Presentence Investigation Report (the "PSR") that calculated a Guidelines range of fifty-one to sixty-three months’ imprisonment. In its sentencing memorandum, the government stated that it did "not dispute the calculation of the ... Guidelines range set forth in the PSR," id. at 54, and argued that an above-Guidelines sentence was necessary to adequately punish Sealed Defendant for his betrayal of the FBI and his willingness to aid those who seek to kill innocent Americans, to deter others from similar activity, and to protect the public from further crimes that Sealed Defendant might otherwise commit. In his sentencing memorandum, Sealed Defendant sought a below-Guidelines, time-served sentence of twenty-six months’ imprisonment, arguing that such a sentence would be appropriate in light of his twenty years of fruitful cooperation with the FBI and various personal mitigating factors.

After consulting with the parties, the district court scheduled Sealed Defendant's sentencing for December 2020. Due to the ongoing COVID-19 pandemic, however, this sentencing proceeding was conducted via Skype videoconference. See Standing Order, In re Coronavirus/COVID-19 Pandemic , No. 20-mc-176 (CM) (S.D.N.Y. Mar. 30, 2020), ECF No. 1 (finding that felony pleas and felony sentencings under Federal Rules of Criminal Procedure 11 and 32, respectively, could not be conducted in person without seriously jeopardizing public health and safety). At the beginning of the proceeding, after the district judge explained to Sealed Defendant that he had the right to an in-person sentencing – and the option to postpone the proceeding until it could be safely held in person – he and his counsel both affirmatively stated that they preferred to proceed by videoconference. The district judge then confirmed that, consistent with her order sealing the entire case, the only participants in the Skype videoconference were the parties, their counsel, members of Sealed Defendant's immediate family, and the judge herself. After hearing extensive argument from the parties and providing lengthy discussion of the sentencing factors set forth in 18 U.S.C. § 3553(a), the district court sentenced Sealed Defendant to eighty-four months’ imprisonment, to be followed by a three-year term of supervised release.

This appeal followed.

II. DISCUSSION

A. The Plea Agreement

Sealed Defendant contends that the government breached the plea agreement by (1) advocating a sentence above the Stipulated Guidelines Range, and (2) acquiescing in Probation's calculation of a higher Guidelines range. Neither contention is meritorious, however, because the plea agreement contemplates the government might take those actions.

We review a plea agreement "in accordance with principles of contract law" and look "to what the parties reasonably understood to be the terms of the agreement" to determine whether a breach has occurred. United States v. Taylor , 961 F.3d 68, 81 (2d Cir. 2020) (citation omitted). Where, as here, a defendant did not raise any argument that the government breached the plea agreement before the district court, we review such claims for plain error. Id.

There was no error, much less plain error, in allowing the government to advocate a sentence above the Stipulated Guidelines Range. The government and Sealed Defendant expressly agreed that either party could "seek a sentence outside of the Stipulated Guidelines Range based upon the factors" delineated in 18 U.S.C. § 3553(a). App'x at 9. Indeed, the government and Sealed Defendant both availed themselves of this provision in arguing, respectively, for sentences above and below the Stipulated Guidelines Range. Sealed Defendant offers no persuasive explanation of how the plea agreement could be breached by conduct it expressly permitted.

Likewise, the government's failure to challenge Probation's calculation of a higher Guidelines range was not a violation of the plea agreement, which permitted the parties "to make all appropriate arguments" in the event that Probation calculated a Guidelines range "different from [the range] stipulated to." Id. at 9–10. The discrepancy between the Stipulated Guidelines Range and the range in the PSR arose from an apparent error in the plea agreement, which applied a three-level enhancement instead of a six-level enhancement in connection with Sealed Defendant's threats to federal law enforcement agents. See U.S.S.G. § 3A1.2(a), (b). But section 3A1.2(b) clearly applies where the conditions of section 3A1.2(a) are met "and the applicable Chapter Two guideline is from Chapter Two, Part A." Id. § 3A1.2(b). Since the parties stipulated that the section 3A1.2(a) enhancement applied and that the Guideline applicable to these offenses was found in section 2A6.1 (i.e., Chapter Two, Part A), Probation correctly applied the six-level enhancement for Sealed Defendant's threats to law enforcement officers. Accordingly, the government's acquiescence to the PSR's corrected Guidelines calculation neither strayed from "what the parties reasonably understood to be the terms of the agreement" nor "produce[d] serious unfairness" for Sealed De...