U.S. v. Campbell
| Decision Date | 07 August 2002 |
| Docket Number | Docket No. 00-1588. |
| Parties | UNITED STATES of America, Appellee, v. George CAMPBELL, also known as Ramadan, also known as Roland Campbell, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Judith Philips, Assistant United States Attorney, Brooklyn, N.Y. (Alan Vinegrad, United States Attorney for the Eastern District of New York, Peter A. Norling, Assistant United States Attorney, Brooklyn, NY, on the brief), for Appellee.
Labe M. Richman, New York, NY, for Defendant-Appellant.
Before: NEWMAN and KEARSE, Circuit Judges, and RAKOFF, District Judge.*
Defendant George Campbell appeals from a judgment of conviction entered in the United States District Court for the Eastern District of New York, Raymond J. Dearie, Judge, following a jury verdict finding him guilty on four counts of armed robbery of banks, in violation of 18 U.S.C. § 2113, three counts of armed robbery of post offices, in violation of 18 U.S.C. § 2114, one count of conspiracy to commit those offenses, in violation of 18 U.S.C. § 371, and seven counts of using and carrying a firearm while committing a crime of violence, in violation of 18 U.S.C. § 924(c). Campbell was sentenced principally to a total of 155 years' imprisonment; however, in light of an applicable extradition treaty, see Treaty between the United States and Costa Rica for the Mutual Extradition of Fugitives from Justice, Nov. 10, 1922, 43 Stat. 1621 (the "Treaty" or "Extradition Treaty"), and a condition imposed by the Costa Rican government in granting extradition of Campbell, the district court ordered the Bureau of Prisons to release Campbell after he completes an imprisonment period of 50 years. On appeal, Campbell contends principally (1) that his overall sentence violates the terms of the Costa Rican government's extradition decree, (2) that his prosecution on the firearms counts was not authorized by the Treaty or the decree, (3) that the 20-year sentences imposed on six of the firearms counts violate the principles of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and (4) that the 30-year sentences imposed on the conspiracy and substantive robbery counts exceed the statutory maxima for those offenses. Campbell also makes fair-trial, double-jeopardy, and ineffective-assistance-of-counsel challenges to his conviction. For the reasons that follow, we reject most of his contentions, affirm his conviction, and uphold the district court's ruling that sentence may be pronounced in accordance with the Sentencing Guidelines ("Guidelines") so long as it is made clear by court order that Campbell is not to be held in prison for more than 50 years. However, there are flaws in the calculation and transcription of the sentence, and we therefore vacate and remand for recalculation and the entry of a corrected judgment.
In October 1991, members of a violent gang of robbers known as the "Forty Thieves" were arrested following a five-month spree of armed robberies of more than 10 banks and post offices in New York and Connecticut. Campbell, a core member of the gang, was arrested in Maryland in December 1991, but he escaped some weeks later by posing as another inmate who was scheduled for release. He remained at large while four of the gang members were convicted after a jury trial in 1993; he was finally arrested in Costa Rica in the summer of 1996.
The United States submitted a formal request to the Republic of Costa Rica seeking the extradition of Campbell, also known as "Roland Lavar Campbell". The request was supported by an affidavit by Assistant United States Attorney ("AUSA") Charles W. Gerber dated June 7, 1996 ("AUSA's Affidavit"), together with, inter alia, a copy of the 33-count superseding indictment ("indictment"), which included 24 counts against Campbell; a copy of the warrant issued for Campbell's arrest; and the affidavit of a postal inspector describing the investigation and the evidence that led to the indictment. The AUSA's affidavit described, inter alia, the elements of and maximum penalties for the charges against Campbell, including the charges on which he was ultimately convicted, and it provided excerpts from the pertinent substantive and sentencing provisions of Title 18 of the United States Code.
In a decree dated October 1, 1996, the Costa Rican criminal court granted extradition except with respect to possible charges of concealment and evasion that it would deem time-barred, and imposed the condition, inter alia, that Campbell would not be sentenced to more than 50 years' imprisonment. As translated, the decree stated, in pertinent part, as follows:
The extradition proceedings initiated by the Government of the Republic of the United States against RONALD LAVAR CAMPBELL, a.k.a. GEORGE CAMPBELL, RAMADAN AND RONALD CUTLER are approved, subject to the following conditions: That country's representative must give a formal promise covering the following: A — That the person extradited will not be subject to life imprisonment. B — That the person extradited will not be sentenced to death. C — That a copy of the sentence, duly translated and authenticated, will be sent to this country. D — That he will not receive a sentence of more than 50 years. E — That he will not be tried for crimes different from the ones for which this extradition is granted. The extradition is not granted for the crimes of concealment and evasion, which are time barred.
Decree of Third Criminal Court of San José dated October 1, 1996 ("Extradition Decree") (quoted in Order of Costa Rican Superior Court of Criminal Cassation dated December 3, 1996 ("Court of Criminal Cassation Order"), at 1.) The Extradition Decree was in all respects confirmed on appeal by the Court of Criminal Cassation Order.
The United States Department of State, through the United States Embassy in Costa Rica, provided assurances to the Costa Rican government in a diplomatic note ("State Department Note") stating, inter alia, that "Campbell will not be sentenced to serve a term of imprisonment greater than 50 years." (State Department Note.) In addition, the United States District Court for the Eastern District of New York issued an order stating the following assurances:
Should the defendant be convicted of any of the crimes charged in the pending indictment in this District, the Court, having sole discretion over the sentence to be received by the defendant, agrees that it will not sentence the defendant to a term of life imprisonment. Nor will the Court impose any sentence pursuant to which the defendant would serve a term of imprisonment of greater than fifty years.
Order dated January 24, 1997 (Denis R. Hurley, Judge) ("1997 Order"), at 2. Campbell was extradited to the United States in March 1997.
Following extradition, several counts against Campbell were dismissed either before or at trial. Of the remaining 17 counts, the jury found him guilty on 15 and not guilty on two. He was found guilty on one count of conspiracy to commit robberies of banks and post offices, in violation of 18 U.S.C. § 371 (count 1); four counts of armed bank robbery in violation of 18 U.S.C. § 2113 (counts 8, 14, 16, and 22), together with four counts of using and carrying a firearm in committing those bank robberies, in violation of 18 U.S.C. § 924(c) (counts 9, 15, 17, and 23); and three counts of post office robbery in violation of 18 U.S.C. § 2114 (counts 6, 10, and 12), together with three counts of using and carrying a firearm in committing those postal robberies, in violation of 18 U.S.C. § 924(c) (counts 7, 11, and 13).
Following the jury's verdict of guilty in March 1999, and prior to Campbell's sentencing, the government sought clarification of the Costa Rican government's position concerning the permissible form of Campbell's sentence. In response, the Legal Director of the Costa Rican Ministry of Foreign Affairs Legal Department ("Costa Rican Ministry") sent the Costa Rican Consulate in Washington, D.C., a letter dated June 15, 2000 ("Costa Rican Ministry Letter"), stating, as translated, that
the guilty verdict issued in the United States against a person who was extradited from Costa Rica may make reference to the general amount of jail time to be imposed. However, both the dispositive part and the explanation of purposes must establish in a clear and manifest fashion that the maximum sentence to be served is fifty years, as provided by Article 51 of the Costa Rican Criminal Code.
(Costa Rican Ministry Letter (emphases added).) The Costa Rican Consulate forwarded that letter (in Spanish) to the United States Attorney's Office for the Eastern District of New York, with a cover letter (in English) that stated that
the verdict in the United States against an extradited person[] can refer to the total years that the accused can be indicted for. Nevertheless, the sentence must state, in a clear and manifest way, that the maximum time the accused must serve is 50 years. This would be the real serving time.
(Letter from Costa Rican Consul General to United States Attorney's Office dated June 16, 2000 ("Costa Rican Consul General's Letter").)
A presentence report ("PSR") was prepared on Campbell. It stated that the maximum prison term on the conspiracy count was five years and that the maximum prison term on each of the seven robbery counts was 25 years. On count 7, the first weapons charge, § 924(c)(1) required the imposition of a five-year prison term, consecutive to any other sentence imposed. The PSR stated that the convictions on the remaining gun charges, counts 9, 11, 13, 15, 17, and 23, would properly be treated as second and subsequent convictions under § 924(c)(1), and thus would require 20-year prison terms each, to be served consecutively to each other and to any other...
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