569 F.3d 47 (2nd Cir. 2009), 06-4899, United States v. Jass

Docket Nº:06-4899-cr (L), 06-4951-cr (con).
Citation:569 F.3d 47
Opinion Judge:REENA RAGGI, Circuit Judge:
Party Name:UNITED STATES of America, Appellee, v. Marian JASS, Kenneth Leight, Defendants-Appellants.
Attorney:Marcia S. Cohen, Assistant United States Attorney (John P. Collins, Jr., Diane Gujarati, Assistant United States Attorneys, on the brief), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, New York, for Appellee. Colleen P. Cassidy, Federal Defenders o...
Judge Panel:Before: WALKER, CABRANES, and RAGGI, Circuit Judges.
Case Date:June 16, 2009
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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569 F.3d 47 (2nd Cir. 2009)

UNITED STATES of America, Appellee,


Marian JASS, Kenneth Leight, Defendants-Appellants.

Nos. 06-4899-cr (L), 06-4951-cr (con).

United States Court of Appeals, Second Circuit.

June 16, 2009

Argued: April 8, 2008.

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[Copyrighted Material Omitted]

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Marcia S. Cohen, Assistant United States Attorney (John P. Collins, Jr., Diane Gujarati, Assistant United States Attorneys, on the brief), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, New York, for Appellee.

Colleen P. Cassidy, Federal Defenders of New York, Inc., Appeals Bureau, New York, New York, for Defendant-Appellant Marian Jass.

Larry Sheehan, Law Office of Larry Sheehan, Esq., Bronx, New York, for Defendant-Appellant Kenneth Leight.

Before: WALKER, CABRANES, and RAGGI, Circuit Judges.

REENA RAGGI, Circuit Judge:

Defendants Marian Jass and Kenneth Leight appeal from judgments of conviction entered after a joint trial before a jury

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in the United States District Court for the Southern District of New York (Stephen C. Robinson, Judge ), at which they were found guilty of one count of conspiracy to transport minors in interstate commerce with the intent of (1) having the minors engage in illegal sexual activity, and (2) producing a visual depiction of a minor engaged in such illegal activity, see 18 U.S.C. § 371; two counts of actual transportation of a minor in interstate commerce with the intent to engage in criminal sexual activity, see id. § 2423(a); and one count of sexual exploitation of a child, see id. § 2251(a). The victims of these crimes were Leight's adolescent daughter (" Victim 1" or " daughter" ) and her sixth-grade classmate (" Victim 2" ). In addition, Leight was convicted of two counts of possession of child pornography. See id. § 2252A(a)(5)(B). Jass and Leight were sentenced principally to 65 years' and 115 years' imprisonment, respectively, and are currently serving these sentences.

We discuss and reject the majority of defendants' appellate challenges in a summary order issued today. See United States v. Jass, __ Fed.Appx. __, 2009 WL 1674328 (2d Cir.2009). In this opinion we address two additional arguments raised by Jass that merit more extensive discussion. First, Jass argues that her Sixth Amendment right to confrontation, as discussed in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and its progeny, was violated by the admission at trial of an inculpatory statement by Leight in which references to Jass were redacted and replaced by neutral pronouns or references to " another person." We reject this argument on its merits and, moreover, conclude that, even if we were to identify error, it was harmless beyond a reasonable doubt in light of the other overwhelming evidence of Jass's guilt. Second, Jass contends that the district court committed procedural error at sentencing by applying a two-level enhancement pursuant to United States Sentencing Guidelines (" U.S.S.G." ) § 2G2.1(b)(3)(B)(ii) to the calculation of her Sentencing Guidelines range. We agree that § 2G2.1(b)(3)(B)(ii) was not properly applied to Jass's Guidelines calculation, but here again we conclude that any error was harmless because the district court clearly stated that it would have imposed the same below-Guidelines sentence even absent the disputed two-level enhancement.

Thus, for the reasons stated in this opinion and the contemporaneous summary order, we affirm defendants' judgments of conviction.

I. Background

Mindful that two children are the victims of the crimes of conviction, we do not recount in detail the sordid circumstances of this case. Rather, we describe only those facts relevant to the two issues addressed in this opinion, viewing the evidence, as we must, in the light most favorable to the government. See, e.g., Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Quinones, 511 F.3d 289, 292 (2d Cir.2007).

A. The Admission of Leight's Redacted Statement

Jass and Leight were convicted on multiple conspiratorial and substantive counts of sexual abuse involving Leight's 12-year old daughter, Victim 1, and her similarly aged friend, Victim 2. Because Jass's Confrontation Clause challenge to the admission of Leight's redacted statement relates primarily to evidence involving Victim 2, we focus our background discussion on that evidence.1

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1. Defendants' Abuse of Victim 2

a. The Preliminary Abuse in New York

(1) The Car Incident

Jass and Leight first met Victim 2 when the girl was visiting Leight's daughter at the family home in Rockland County, New York. After one such visit, when Leight was driving Victim 2 back to her own home, Leight engaged the child in a sexually explicit conversation and then offered her money to perform a sexual act on him. Toward this end, Leight had Victim 2 join him in the car's rear seat where he proceeded to instruct her in how to stroke his penis. When the child indicated that she wanted to stop, Leight warned her that if she ever told her mother what had happened, she would not be allowed to visit further with Leight's daughter.

(2) Abuse in the Leight Home

The next time Victim 2 was at the Leight home, Leight showed the girl pornographic computer images of children engaging in sexual acts with adults. 2 As this activity was occurring, Jass entered the room, whereupon the two adults took Victim 2 into their bedroom and suggested that the child join them in various sexual activities. Jass proceeded to instruct Victim 2 in means of sexually stimulating Leight, and Jass herself performed sexual acts on Victim 2. Jass also showed Victim 2 certain sexual devices and urged the child to use them to " practice" sexual intercourse. Following these activities, Leight placed some cash in an envelope, which he identified for Victim 2 as her remuneration. Leight said that he would safeguard the money for the child because sudden possession of the cash might arouse her mother's suspicions.

(3) Jass Solicits Victim 2 To Travel to New Jersey

On another visit by Victim 2 to the Leight home, Jass and the child spent time alone watching a pornographic movie. Later that same day, Victim 2 accompanied Jass, Leight, Leight's daughter, and Leight's son on a trip to a nearby shopping mall. There, Leight gave Victim 2 some of the money he had purportedly set aside for her, which the child spent. Later still, when Jass drove Victim 2 home, Jass proposed to take the child on an overnight trip to another shopping mall in Rockaway, New Jersey. Although Victim 2 understood that Leight's daughter would not be included in this trip, the girl represented otherwise to her mother in order to secure approval for the outing.

b. Jass and Leight Abuse Victim 2 in New Jersey

On October 24, 2004, Jass drove Victim 2 to the Rockaway Mall. After some shopping, Jass and the child checked into a nearby Hilton Hotel where Leight soon joined them. He brought with him a blender, various bottles, and a camera. The adults took Victim 2 back to the mall where they proposed further paid sexual

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activity to the child and then proceeded to give her money and to encourage her to buy suggestive underwear at a lingerie store.

Upon the trio's return to their hotel room, Leight used the blender to make drinks for all of them. Jass and Leight then engaged in vaginal and anal intercourse, instructing Victim 2 to watch and learn from what they did. Leight offered Victim 2 extra money if she would agree to be photographed engaging in sexual activities. Thereafter, Leight and Jass each took pictures while the other performed sexual acts with the child. Although Leight offered to pay Victim 2 still more money if she would have intercourse with him, the child refused. The adults and the child showered together and slept in the same bed that night.

Upon Victim 2's return home the following day, her mother discovered some of the suggestive underwear that had been purchased in New Jersey. After speaking with her daughter about the trip, the mother reported Jass and Leight to New York police.

2. The Search of the Leight Home and Defendants' Incriminating Statements

On November 3, 2004, FBI agents executed a search warrant at the Leight home and found various items described by Victim 2. These included some of the underwear purchased in New Jersey as well as the blender and drink mixes brought to the hotel by Leight. Also seized were the sexual devices that defendants had shown Victim 2 and a number of pornographic videotapes. As a consequence of the search, agents placed Jass and Leight under arrest.

a. Jass's Statement

In the course of the FBI's search, Jass acknowledged that she and Leight had taken Victim 2 to the Rockaway Mall, and she identified a thong undergarment as an item bought by Victim 2 on that trip. Jass further identified certain seized toiletries as having come from the hotel that the three had stayed in during the trip. Jass's statements were admitted at trial in redacted form, with the phrase " other person" substituted for Leight's name. Neither defendant challenges the admission of these statements on appeal.

b. Leight's Statement

(1) The Unredacted Admission

After Leight's receipt of Miranda warnings, he waived his right to remain silent and agreed to answer agents' questions. Describing the Rockaway Mall trip, Leight stated that he and Jass took Victim 2 to that mall in October 2004, and that he gave the child money to spend there. After initially denying any sexual involvement with Victim 2, Leight admitted...

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