U.S. v. Weisser
| Citation | 411 F.3d 102 |
| Decision Date | 20 June 2005 |
| Docket Number | Docket No. 01-1588. |
| Parties | UNITED STATES of America, Appellee, v. John WEISSER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Mary Anne Wirth, Bleakley, Platt & Schmidt, LLP, White Plains, NY, for Appellant.
Jason M. Weinstein, Special Assistant United States Attorney (David N. Kelley, United States Attorney for the Southern District of New York, Celeste L. Koeleveld, Assistant United States Attorney, on the brief), New York, NY, for Appellee.
Before: WALKER, Chief Judge, CARDAMONE, Circuit Judge, and OWEN, District Judge.*
Defendant-appellant John Weisser appeals from the judgment of the United States District Court for the Southern District of New York (Richard Conway Casey, Judge), convicting him of (1) using a facility of interstate commerce to entice a minor to engage in a sexual act, in violation of 18 U.S.C. § 2422(b); (2) traveling in interstate commerce for the purpose of engaging in a sexual act with a minor, in violation of 18 U.S.C. § 2423(b); and (3) transporting child pornography in interstate commerce, in violation of 18 U.S.C. § 2252A(a)(1). The district court sentenced Weisser principally to 210 months' imprisonment. On appeal, Weisser argues (1) that the destruction of certain trial exhibits in the terrorist attacks of September 11, 2001 deprived him of his right to appeal, and (2) that his trial counsel was ineffective. He also raises several challenges to his sentence. For the reasons that follow, we affirm in all respects except one and remand for consideration of whether to resentence pursuant to United States v. Crosby, 397 F.3d 103, 117 (2d Cir.2005).
On December 28, 1999, John Weisser, a thirty-eight-year-old male living in San Francisco, initiated an instant message chat session with an America Online ("AOL") subscriber with the screen name "Skaterboard88" ("Skaterboard"). Skaterboard's AOL profile identified him as an eleven — or twelve-year-old boy living in New York; he was, however, the fictitious creation of undercover federal law enforcement officers. Over the next four months, Weisser and Skaterboard conducted over sixty chat sessions and email exchanges. In these communications, Weisser expressed his sexual preference for "younger guys" and discussed in graphic language the kinds of sexual activity in which he had previously engaged with minors, as well as the sexual activities in which he proposed engaging with Skaterboard during Weisser's next trip to New York. His messages were designed to gain Skaterboard's trust; he assured Skaterboard that he was "pretty nice," that he would "watch out" for Skaterboard, and that he would "NEVER do anything to make [Skaterboard] NOT trust [him]." He also repeatedly tried to verify Skaterboard's age, at one point requesting a photograph of Skaterboard and explaining that he wanted to be sure Skaterboard was not a "fake." On two occasions, Weisser spoke on the telephone with United States Secret Service Special Agent Susan Rice, a female agent posing as Skaterboard.
Over the course of several chat sessions in March 2000, Weisser arranged to meet Skaterboard in New York the following month. Weisser told Skaterboard that he wanted Skaterboard to stay in the hotel with him for an entire night, asked whether Skaterboard would paint Weisser's body, and promised to bring him computer games, slippers, and matching outfits for the two of them to wear to a baseball game. He expressly stated that he wanted to have sex with Skaterboard. He also formulated and reformulated a detailed plan for Skaterboard to miss school in order for Skaterboard to spend the day with Weisser, without attracting the attention of his mother. In the final days before the trip, Weisser sent Skaterboard his flight information and promised to e-mail Skaterboard upon arriving at his hotel, the Grand Hyatt at Grand Central Station. He also told Skaterboard to meet him there between 8:30 a.m. and 9:00 a.m. on the morning of April 27, 2000.
Weisser checked into the Grand Hyatt during the early morning hours of April 27 and promptly sent Skaterboard an email message with his hotel room number and telephone number. At 8:37 a.m., he sent Skaterboard another message, asking "[W]here are you?" One minute later, federal agents entered Weisser's hotel room and arrested him. A subsequent search of the room revealed several items of sexual paraphernalia and a CD in Weisser's briefcase containing images of child pornography.
At trial, Weisser's principal defense was that he did not actually think that Skaterboard was a child, but instead believed Skaterboard was an adult posing as a child. In this vein, Weisser asserted that he was not sexually interested in minors; that he had planned to expose Skaterboard as a fake on his trip to New York; and that his sexual preferences differed from those he expressed through his online persona. Weisser also claimed that he did not know that the CD containing pornographic images was in his briefcase when he flew across the country.
The government's principal evidence at trial consisted of transcripts of the chat sessions between Weisser and Skaterboard and tapes of their two phone conversations. The communications vividly illustrated the evolution of Weisser and Skaterboard's online relationship, as well as the detailed plans Weisser had made for his trip to New York. The government also introduced transcripts of chats between Weisser and other individuals, in which Weisser discussed both his general desire to have sex with young boys and his specific plan to travel to New York to have sex with a minor. Finally, the government demonstrated that the CD in Weisser's briefcase, of which he claimed to be ignorant, had been created the day before Weisser flew to New York by transferring previously downloaded images from Weisser's computer to the CD. The jury convicted Weisser on all counts, and this appeal followed.
Weisser's principal claim is that the destruction of certain government exhibits in the terrorist attacks on the World Trade Center on September 11, 2001 has rendered illusory his right to appeal. He argues that without these exhibits, his appellate counsel cannot determine whether his trial counsel was effective. Weisser claims that the usual remedy, reconstruction of the record, see Fed. R.App. P. 10(c), is impossible and that the alternative remedy, a new trial without the exhibits, would be irremediably unfair. See United States v. Charles, 313 F.3d 1278, 1283 (11th Cir.2002) (). Thus, he urges reversal of his conviction in its entirety.1
We first consider whether, in order to merit relief, an appellant must allege specific prejudice to his right to appeal resulting from gaps in the record on appeal. In two previous cases, we required a showing of prejudice by the appellant before relief based on missing documents in the record could be granted. In United States v. Di Canio, 245 F.2d 713, 715 (2d Cir.1957), in which the court stenographer died before he was able to transcribe his notes, we held that "[t]he absence of a completely accurate transcript does not, without more, invalidate a conviction," and that a new trial would only be "necessary" if "the defects of the record [were] of a prejudicial character." See also United States v. Smart, 448 F.2d 931, 936 (2d Cir.1971) .
A prejudice requirement has now been adopted by almost every circuit to consider the issue in the context of missing or inaccurate trial transcripts.2 In the First, Third, Fourth, Sixth, Eighth, Ninth, and Tenth Circuits, relief is accorded an appellant only when a gap in the record "specifically prejudices his ability to perfect an appeal." United States v. Huggins, 191 F.3d 532, 534, 537 (4th Cir.1999); accord United States v. Haber, 251 F.3d 881, 890 (10th Cir.2001); United States v. Kelly, 167 F.3d 436, 438 (8th Cir.1999); United States v. Brand, 80 F.3d 560, 563 (1st Cir.1996); United States v. Sierra, 981 F.2d 123, 126 (3d Cir.1992); United States v. Antoine, 906 F.2d 1379, 1381 (9th Cir.1990); United States v. Gallo, 763 F.2d 1504, 1530-31 (6th Cir.1985); see also United States v. Todd, 287 F.3d 1160, 1164 (D.C.Cir.2002) (). Only the Fifth and Eleventh Circuits have taken a different approach, and then only when the defendant is represented by new counsel on appeal. In that circumstance, those courts grant the defendant relief whenever a "substantial and significant portion of the record" is missing. United States v. Selva, 559 F.2d 1303, 1306 (5th Cir.1977); see also United States v. Preciado-Cordobas, 981 F.2d 1206, 1212 (11th Cir.1993) (same). This minority rule, however, may have undesirable consequences, since it "creates the perverse incentive [for] defendants to dismiss trial counsel and seek new appellate counsel whenever questions arise over the sufficiency of the trial transcript." Huggins, 191 F.3d at 537.
A prejudice requirement, by contrast, makes sense: Where gaps in the record on appeal bear no relation to a litigant's ability to prosecute his appeal, relief is not warranted. We thus follow and reaffirm our holdings in Smart and Di Canio, and require an appellant to show specific prejudice to his ability to perfect an appeal, regardless of whether he is represented by new counsel on appeal, before we will grant relief based on gaps in the record.
Prejudice exists if the record is "so deficient that it is impossible for the appellate court to determine if the district court has committed reversible...
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