USA v. Chestaro, Docket Nos. 98-1107

• Decision Date: 01 June 1999
• Docket Number: Docket Nos. 98-1107,98-2784
• Citation: 197 F.3d 600
• Parties: (2nd Cir. 1999) UNITED STATES OF AMERICA, Respondent-Appellee, v. STEVEN CHESTARO, Petitioner-Defendant-Appellant. August Term 1998 Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 600

197 F.3d 600 (2nd Cir. 1999)

UNITED STATES OF AMERICA, Respondent-Appellee, v. STEVEN CHESTARO, Petitioner-Defendant-Appellant.

Docket Nos. 98-1107, 98-2784

August Term 1998

UNITED STATES COURT OF APPEALS SECOND CIRCUIT

Argued: June 1, 1999

Decided: Dec. 16, 1999

Appeal from a judgment of conviction and sentence by the United States District Court for the Southern District of New York (Lewis A. Kaplan, District Judge), following a jury trial on a charge of assault of a federal officer in violation of 18 U.S.C. 111, and sentence.

Affirmed.

[Copyrighted Material Omitted]

ALEXANDER E. EISEMANN, ESQ. New York, New York for Petitioner-Defendant-Appellant

DAN HIMMELFARB, Assistant United States Attorney (Ira M. Feinberg, Assistant United States Attorney, on the brief) (Mary Jo White, United States Attorney for the Southern District of New York) New York, New York for Respondent-Appellee

Before: MESKILL and WALKER, Circuit Judges, and TRAGER, District Judge.^*.

JOHN M. WALKER,Jr., Circuit Judge:

Petitioner-appellant Steven Chestaro appeals from the February 23, 1998 judgment of conviction for assaulting a federal officer entered in the United States District Court for the Southern District of New York (Lewis A. Kaplan, District Judge). Chestaro appeals his conviction, his sentence, and the district court's subsequent denial of his motion to vacate his conviction pursuant to 28 U.S.C. 2255. We affirm.

BACKGROUND

The government charged in one count that on the evening of February 19, 1997, Steven Chestaro assaulted, resisted, and interfered with three United States Postal Police Officers in the performance of their duties, in violation of 18 U.S.C. 111. The government alleged that, in the course of his resistance, Chestaro used a "deadly and dangerous weapon," a box-cutter, within the meaning of 18 U.S.C. 111(b), which provides an "enhanced penalty" where the assailant "uses a deadly or dangerous weapon . . . or inflicts bodily injury." The defendant was tried twice because the first trial resulted in a deadlocked jury. It will be necessary to discuss aspects of both trials in this opinion.

The evidence at both trials consisted of the box-cutter and the testimony of the three officers. The officers testified that, just before midnight on February 19, they saw Chestaro smoking a cigarette in the lobby of the Morgan General Mail Facility in midtown Manhattan. The facility is not a post office and is not open to the public. The officers walked up to Chestaro and determined that he was not employed by the postal service. One of the officers told him that he was not allowed to be there and that smoking in the building was prohibited. Chestaro left the building.

Less than five minutes later, Chestaro reappeared in the building and began cursing at the officers. Two of the officers then took Chestaro by the arms and escorted him outside. The third officer followed. Once all four were outside, the three officers turned away and started to walk down the sidewalk. One officer then saw Chestaro pull a box-cutter out of his pocket. The officer called out that Chestaro had a knife.

As soon as Chestaro had removed the box-cutter from his pocket, he began to swing it at the officers, but before he could move his arm very far, one of them grabbed Chestaro's wrist. After a brief struggle, the officers subdued, handcuffed, and arrested him. Each officer received a minor injury as a result of the altercation.

Chestaro took the stand. He testified that he had entered the postal building at 5:30 p.m.; that a mailman had punched him in the face; that he had been escorted out of the building and then thrown to the ground and beaten. He denied that he had hit any of the police officers or cut them with a box-cutter.

At the first trial, the district court charged the jury that it should return a verdict of guilty on the charged offense if it found that the government had proven five elements beyond a reasonable doubt:

(1) that at the time of the incident, the police officers were officers or employees of the United States;

(2) that the defendant forcibly assaulted, resisted, opposed, impeded, intimidated, or interfered with the officers;

(3) that he did these acts willfully;

(4) that at the time of the incident, the officers were engaged in the performance of their duties; and

(5) that the defendant used a deadly or dangerous weapon or inflicted bodily injury.

At the government's request, and without objection from the defendant, the district court also charged that, if the jury found that the government had proven the first four elements of the crime charged but not the fifth, it could convict Chestaro of a lesser included offense. See United States v. Chestaro, 17 F. Supp. 2d 242, 243 (S.D.N.Y. 1998).

After several hours of deliberation and an Allen charge, the jury announced that it was "hopelessly deadlocked." At defense counsel's suggestion, the district court asked the jury for a partial verdict. Thereupon the jury returned with a partial verdict acquitting Chestaro on the charged offense. The jury remained deadlocked on the lesser included offense, and the district court declared a mistrial on that offense without objection from either party.

Three months later, the case was retried. The offense charged was the same as the lesser included offense at the first trial. The district court's jury instructions closely tracked its previous charge, except that it excluded the fifth element of the earlier charged offense -- using a deadly or dangerous weapon or inflicting bodily injury. The district court also charged the jury that it could convict on a lesser included offense if it found "that the government has not proved the second element of the offense, that is, that they've not proved what I've just described to you as forcible conduct." ¹.

After deliberating for about two hours, the jury returned a guilty verdict on the charged offense.

At his sentencing in February 1998, Chestaro was represented by appellate counsel. His trial counsel, whom Chestaro had dismissed just before sentencing, was also present. Defense counsel and the government disagreed as to whether the applicable sentencing guideline was the one pertaining to aggravated assault, U.S.S.G. 2A2.2, or obstructing or impeding officers, U.S.S.G. 2A2.4. Relying on United States v. Watts, 519 U.S. 148 (1997), Judge Kaplan ruled that 2A2.2 applied, notwithstanding the jury's verdict at the first trial. Judge Kaplan found by clear and convincing evidence that the defendant pulled a box-cutter on the officers and swung it at them with the intent to do bodily harm. The district judge sentenced Chestaro to a 33-month term of imprisonment.

Chestaro filed a timely appeal in this court, but then withdrew it to move in the district court under 28 U.S.C. 2255. Chestaro's 2255 motion argued that: (1) he was subjected to double jeopardy, in violation of the Fifth Amendment; (2) trial counsel was ineffective; and (3) Chestaro's conviction was unlawful because the government wrongfully charged as an element of the offense what should have been only a sentencing enhancement. This last claim was raised for the first time in the 2255 motion. The district court denied the 2255 motion, see Chestaro, 17 F. Supp. 2d 242, but granted a certificate of appealability as to the double jeopardy issue.

Chestaro appealed from the district court's denial of his 2255 motion. This appeal has been consolidated with his direct appeal from conviction. In the consolidated appeal, Chestaro contends that (1) 111 is unconstitutionally vague; (2) his retrial violated the Double Jeopardy Clause; (3) trial counsel was ineffective; (4) the district court erred at sentencing; (5) the charge that remained after the first trial constituted only a misdemeanor; and (6) trial counsel's consent to a mistrial was limited to a retrial on a misdemeanor count. We find no merit in these arguments and affirm.

DISCUSSION

Several of Chestaro's arguments require us to examine the statute under which he was charged.

18 U.S.C. 111, in pertinent part, provides:

(a) In general.--Whoever--

(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties; . . .

. . .

shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and in all other cases, be fined under this title or imprisoned not more than three years, or both.

(b) Enhanced penalty.--Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon (including a weapon intended to cause death or danger but that (fails to do so by reason of a defective component) or inflicts bodily injury, shall be fined under this title or imprisoned not more than ten years, or both.

18 U.S.C. 111. The language in subsection (a) providing a lesser penalty for "simple assault" was added to the statute in 1994 as part of the Violent Crime Control Act of 1994; subsection (b) was added in 1988 as part of the Anti-Drug Abuse Act of 1988 and amended in 1994.

I. Unconstitutional Vagueness

Chestaro argues that 111 is fatally vague because it does not clearly establish the applicable penalty for the specific conduct said to violate the statute. See United States v. Batchelder, 442 U.S. 114, 123 (1979). He claims that, while the statute is clear as to what types of behavior are prohibited, it is impossible for a person of ordinary intelligence to distinguish between simple assault, for which a maximum penalty of one year is prescribed, and "all other" assaults, for which the maximum term is three years.

Chestaro's argument has some appeal, but is ultimately unavailing. The statute does not define "simple assault" and one can determine what constitutes "all other" assaults only through the...