U.S. v. Crispo
| Decision Date | 24 September 2002 |
| Docket Number | Docket No. 00-1712.,Docket No. 00-1711. |
| Citation | 306 F.3d 71 |
| Parties | UNITED STATES of America, Appellee, v. Andrew CRISPO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Edward J.M. Little, New York, N.Y. (Lisa A. Cahill, Zuckerman Spaeder LLP, New York, NY, of counsel), for Defendant-Appellant.
James G. Cavoli, Assistant United States Attorney, New York, N.Y. (Mary Jo White, United States Attorney, Andrew J. Ceresney, Teresa A. Pesce, Jamie L. Kogan, Assistant United States Attorneys, Southern District of New York, New York, NY, of counsel), for Appellee.
Before: FEINBERG, CARDAMONE and POOLER, Circuit Judges.
Defendant Andrew Crispo (defendant or appellant) appeals from a judgment of conviction entered October 13, 2000 in the United States District Court for the Southern District of New York (Hellerstein, J.) after a jury convicted him of one count of attempted extortion in violation of the Hobbs Act, 18 U.S.C. § 1951 (1994), and one count of attempted obstruction of justice in violation of 18 U.S.C. § 1503 (1994 & Supp. II 1996). Crispo also pled guilty to possession of crack cocaine in violation of 21 U.S.C. § 844 (1994 & Supp. II 1996), but takes no appeal from that conviction. Crispo was sentenced principally to concurrent prison terms of 85 months on each count of attempted extortion and attempted obstruction of justice, and to 12 months on the possession charge.
Defendant raises a number of objections to the proceedings below. We address three of them in this opinion. The remaining objections are without merit and are disposed of in a summary order filed concurrently with this opinion. We now consider whether: (1) a supplemental jury charge coerced the jury into reaching its verdict; (2) a trustee in bankruptcy is an "officer" within the contemplation of the obstruction of justice statute, 18 U.S.C. § 1503(a); and (3) the sentencing court erred in (a) ruling that a trustee in bankruptcy may be an "official victim" under U.S.S.G. § 3A1.2 (2000), (b) granting a two-point enhancement to Crispo's offense level on account of the victims' vulnerability, id. § 3A1.1, and (c) departing upward by two points for extreme psychological injury and other aggravating circumstances, id. §§ 5K2.0, 5K2.3.
One of the issues that we must resolve concerns defendant's conviction for attempted obstruction of justice. It is a universally accepted truth in the law that each of the elements of a crime must be proved at trial for there to be a valid conviction. The indictment in the appeal before us charges defendant with attempted obstruction of justice under 18 U.S.C. § 1503, in that he unlawfully, willfully and by threats endeavored to impede officers of a court of the United States in the discharge of their duties. Concededly, the proof at trial showed defendant's unlawful threats and willful conduct were designed to impede a trustee in bankruptcy in the discharge of his duties. To ensure that the punishment fits the crime of conviction, the alleged victim, here a private bankruptcy trustee, must also be shown under § 1503 to be an officer of a court of the United States. If not, defendant cannot be found guilty of obstruction of justice anymore than can a conviction for homicide stand if the victim was not a human being. Because the status of a private bankruptcy trustee is an open question, we asked the parties for additional briefing, the results of which are reflected in the discussion that follows.
The events leading up to the commission of the alleged crimes began in 1996 when Crispo, a noted art and antiques dealer, filed for bankruptcy in the Southern District of New York. The bankruptcy court appointed Robert Weiner, Esq., to serve as trustee and, in that capacity, to manage Crispo's estate. After his appointment, Weiner retained Sandra Mayerson, Esq., an attorney in his firm, as counsel in the bankruptcy proceedings. The crimes that eventually resulted in the instant prosecution developed out of this relationship and, in particular, Crispo's perception that Mayerson was mismanaging his assets.
Crispo and Mayerson's relationship began to sour over a disagreement as to whether a home Crispo owned in Charleston, South Carolina should be sold to satisfy his creditors' claims. That house, known as "Pineapple Gates," was a historic landmark and, at the time of its purchase, the most expensive home in Charleston. Seeing no alternative, attorneys Mayerson and Weiner arranged, over Crispo's objections, for the house to be auctioned. After the house had been sold, Crispo was furious and, blaming Mayerson, reportedly yelled, "I want everyone to know that this woman has stolen my house and I will see her in jail or I will see her worse." This was not an isolated threat. Mayerson and another attorney at her firm testified that Crispo continued to make threats against Mayerson.
In May 1997, about a month after defendant's first threat, Mayerson took her daughter Katy, who was two years old at the time, to Central Park to play. As they were preparing to leave, an unknown woman suddenly picked Katy up so that her male companion, who spoke a foreign language, could take a picture of the two of them. Mayerson at first believed the strangers were innocent tourists, but later became suspicious that Crispo may have arranged the encounter to obtain a photo of her daughter. Accordingly, Mayerson informed the FBI of her suspicions and shared her concern with others, including acquaintances of Crispo's. This information was passed on to defendant and his attorney.
These events culminated on May 21, 1999 in the confrontation that is at the heart of this litigation. That day, Crispo faxed a reimbursement request for $2366 to a paralegal, Dawn Mulvey, at the trustee's law firm. In urgent need of money — he was being paid $5000 per month from the estate for living expenses — defendant called the law office several times, and even sent a messenger there to obtain his check. When someone informed Mulvey that Crispo's messenger had arrived, she called Crispo and told him the check was not yet ready. At this point, Crispo launched into an angry tirade. Then, he suddenly became silent and announced in a steady voice that "he had pictures of Sandy's daughter and he knew the park that Sandy's daughter played in and when [] all this is over he [was] going to kidnap Sandy's daughter." Mulvey understood this comment to be a threat in response to the fact that she "was taking too long to process a check" and that "[h]e wanted the check." The police arrested Crispo on May 24, 1999, and discovered just under five grams of crack cocaine on his person.
After a jury is charged there is an expectation that discussion among the jurors will move along toward a resolution of the issues submitted to them. But, on occasion, the discussions become "log-jammed" and no further progress can be anticipated. In these circumstances, the trial court will sometimes give the jury supplemental instructions commonly known as an Allen charge, which encourages jurors to listen to each other and reminds them that they have a "duty to decide the case if they [can] conscientiously do so." Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528 (1896). The Allen charge, referred to as a "dynamite" charge, is intended to break-up the log-jam and permit the jury to move on toward a verdict. See United States v. Kahaner, 317 F.2d 459, 484 (2d Cir.1963).
In this case, the jury reported, after a day and a half of deliberations, that they had reached an impasse. When defendant learned of the jury impasse he moved for a mistrial. In denying that motion, the trial court decided that useful deliberations had likely not yet come to an end and, as a result, delivered the Allen charge to encourage the jurors to continue deliberating. An hour and 15 minutes later, the court received a second note informing it that one of the jurors could not agree. This lone holdout revealed her identity in court when she corrected a mistaken reading of her handwriting. Over the defendant's objection, the trial judge recessed court for the night and told the jury it would resume deliberations in the morning. Before the jury departed, the trial judge received another note requesting the Allen charge, but he did not respond to it that night.
The next morning the jury submitted a request for a government exhibit and a transcript of all of the trial testimony. The court provided the jury with the exhibit, ruled that it would be too cumbersome to provide the transcript, asked if the jury needed anything else, and reread the Allen charge requested by the jury the night before. A couple of hours later the jury returned a guilty verdict.
Defendant insists the district court erred by (1) failing to include sufficient cautionary language to remind holdout jurors to maintain their conscientiously held beliefs; (2) failing to grant the jury's request for the entire trial transcript; and (3) failing to grant a mistrial after the jury sent two notes indicating a deadlock, and instead rereading the Allen charge.
The first issue was not raised in the district court or in defendant's main brief in this Court. Between the time of the first Allen charge and defendant's submission of his reply brief in this Court, Crispo made only one objection related to the argument now before us. At trial, defense counsel stated, "My concern is that you told those who have reasonable doubts to listen to the others, but you have not told those who don't have a reasonable doubt to listen." Judge Hellerstein thereupon gave the jury the additional instructions for which Crispo's attorney had asked. After the requested cautionary language had been provided, defense counsel did not object to...
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