U.S. v. Leung
| Decision Date | 01 March 2004 |
| Docket Number | Docket No. 02-1736(L).,Docket No. 02-1737(CON). |
| Parties | UNITED STATES of America, Appellee, v. Steven Chin LEUNG, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Neil M. Barofsky, Assistant United States Attorney (Meir Feder, Assistant United States Attorney, on the brief), for James B. Comey, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
Richard M. Strassberg (Eric D. Musselman, on the brief), Goodwin Procter LLP, New York, NY, for Defendant-Appellant.
Before: VAN GRAAFEILAND, B.D. PARKER, Circuit Judges, and BERMAN, District Judge.*
Steven Chin Leung appeals from two judgments of conviction of the United States District Court for the Southern District of New York (Denny Chin, Judge). Leung pleaded guilty to two counts of passport fraud in violation of 18 U.S.C. § 1542, one count of bail jumping in violation of 18 U.S.C. § 3146, and one count of obstruction of justice in violation of 18 U.S.C. § 1503. The District Court sentenced Leung principally to a term of forty-eight months' imprisonment on each count, to be served concurrently. Leung challenges his sentence. For the reasons discussed below, we affirm in part, vacate in part, and remand for resentencing.
In March 2001, Leung fraudulently attempted to obtain a U.S. passport at the Honolulu Passport Agency in Hawaii. A criminal complaint was subsequently filed in the U.S. District Court for the District of Hawaii, a warrant issued for Leung's arrest, and Leung was arrested a month later in New York City. At Leung's initial appearance, his counsel inquired into the possibility of pleading guilty to the passport fraud charge in the Southern District of New York. See Fed.R.Crim.P. 20. Leung and the government subsequently reached an agreement concerning the plea and the Rule 20 transfer, and Leung was released in New York on his personal recognizance. The government then filed an information in the District of Hawaii charging Leung with a single count of passport fraud in violation of 18 U.S.C. § 1542, and the case was transferred to the Southern District of New York.
After reviewing State Department files, the government learned that Leung also had fraudulently attempted to obtain a passport in New York in September 1999. After the government discovered this information, the parties negotiated an agreement addressing both passport frauds, and the government alerted the Court that the government anticipated filing a second information charging Leung with the second passport fraud and that Leung would plead guilty to both offenses.
Shortly after the terrorist attacks on September 11, 2001, however, Leung concocted an elaborate scheme to avoid prosecution for the frauds. Pretending to be his own fictional brother, "Jeffrey Leung," Leung falsely reported to his attorney that Steven Leung had died in the attacks, a report that his attorney unwittingly relayed to the District Court. Shortly thereafter, Leung again posed as another fictional brother, "William Leung," in an attempt to obtain a death certificate for Steven Leung from the New York City Law Department World Trade Center Unit ("Law Department"). In this effort, he telephoned the Law Department to report that Steven Leung had worked at the brokerage firm Cantor Fitzgerald in the World Trade Center and had died in the attacks. After his initial request for a death certificate was denied for lack of documentation, Leung followed up by faxing a letter from "William Leung" to the Law Department that included a fabricated email exchange between Steven Leung and Scott Schertzer, a deceased human resources manager at Cantor Fitzgerald whose name Leung found by searching the Internet. The phoney email exchange purported to show that Steven Leung had begun working at Cantor Fitzgerald a week before the attacks to establish the inference that he had died on September 11.
Prior to a court conference scheduled for December 2001, the District Court received a suspicious telephone call from an individual who refused to identify himself and inquired whether, if Leung failed to appear for the conference, the government would seek to dismiss the information pending against him or whether it would seek the issuance of an arrest warrant. Leung did not appear at the conference. Although no one knew for sure at that time whether Leung was still alive, the District Court granted the government's request for an arrest warrant.
The U.S. Marshals Service expended a substantial amount of time and effort investigating the claim by Leung's purported brothers that Leung had died in the attacks. At least two Deputy Marshals worked on the investigation for three to four hours each business day for over a month. Working with the New York City Police Missing Persons Unit, the Law Department, and Cantor Fitzgerald's insurance company, the Deputy Marshals interviewed family members, former employers, Cantor Fitzgerald employees, Leung's former landlords and neighbors, and others. They also obtained hundreds of documents from companies, including United Airlines and the Bellagio Casino in Las Vegas, concerning Leung's travel. Various teams of Deputy Marshals additionally conducted surveillance on eight different days. After eventually determining that Leung was still alive, the Marshals finally found and arrested Leung in February 2002.
In May 2002, the government filed a second information charging Leung with three additional counts: Count One charged him with committing passport fraud in violation of 18 U.S.C. § 1542 in connection with his September 1999 New York passport application. Count Two charged him with bail jumping for failing to appear as required on the Hawaii passport charge in violation of 18 U.S.C. § 3146, and Count Three charged him with obstruction of justice in violation of 18 U.S.C. § 1503 for attempting to fake his death. In June 2002, Leung pleaded guilty, without a plea agreement, to all four counts in the Hawaii and New York informations.
The District Court sentenced Leung in November 2002. It began by dividing the four counts into two groups. See U.S.S.G. § 3D1.1 (2002). The first group contained the Hawaii passport fraud count, the bail-jumping count, and the obstruction-of-justice count. The second group contained only the New York passport fraud count. The Court applied a 3-level enhancement to the first group for substantial interference with the administration of justice under section 2J1.2(b)(2), yielding an offense level of 18.2 With respect to the second group, the Court applied an obstruction enhancement under section 3C1.1, yielding an offense level of 10.3 Combining the groups, the Court found that they constituted 1½ units because the offense levels for each group were 8 levels apart and, accordingly, added 1 level to the group with the highest offense level (the Hawaii passport group), resulting in a total offense level of 19. See id. § 3D1.4(b). It then reduced that level by 2 (but not 3) points to 17, after finding that Leung had accepted responsibility under section 3E1.1(a). But it also granted the government's request for an upward departure pursuant to sections 5K2.0 and 5K2.7, increasing the offense level by 6, to 23. The resulting imprisonment range, with a Criminal History Category I, was 46-57 months, and the Court sentenced Leung principally to 48 months' imprisonment on each count, to be served concurrently. Leung appeals.
Leung lodges four challenges to the District Court's Guidelines calculations. He contends that the Court erroneously: (1) applied a 3-level enhancement for substantial interference with the administration of justice under section 2J1.2(b)(2); (2) failed to group together the Hawaii obstruction and New York passport charges under section 3D1.2(c); (3) failed to give an additional 1-level reduction for acceptance of responsibility pursuant to section 3E1.1(b); and (4) departed upwardly 6 levels under sections 5K2.0 and 5K2.7. We review legal interpretations of the Sentencing Guidelines de novo and factual findings supporting a district court's offense calculation for clear error. 18 U.S.C. § 3742(e); United States v. McSherry, 226 F.3d 153, 157 (2d Cir.2000).
If an obstruction-of-justice offense resulted in "substantial interference with the administration of justice," then the offense level is enhanced 3 levels. U.S.S.G. § 2J1.2(b)(2). Application Note 1 to section 2J1.2 lists as an example of such substantial interference "the unnecessary expenditure of substantial governmental or court resources." Id. § 2J1.2, cmt. n. 1.
In applying this enhancement, the District Court largely based its findings on the additional expenditure of resources by the U.S. Marshals involved in tracking down and arresting Leung after he feigned his death and failed to appear in court. Specifically, the Court expressed its agreement with the government that the additional burden on the Marshals was significant: "This is not the ordinary bail-jumping case, for lots of reasons, perhaps that the Marshals Service did make an extra effort to find Mr. Leung, and I think that there was substantial interference with the administration of justice as a result of what Mr. Leung did." Tr. of Nov. 25, 2002 at 15.
In reviewing sentencing enhancements, we must "give due deference to the district court's application of the guidelines to the facts." 18 U.S.C. § 3742(e); accord United States v. Molina, 106 F.3d 1118, 1121 (2d Cir.1997). "The factors underlying a sentence need only be proved by a preponderance of the evidence, and the district court's findings of fact will not be disturbed unless clearly erroneous." United States v. DeSalvo, 26 F.3d 1216, 1224 (2d Cir.1994) (quoting United States v. Jones, 900 F.2d 512, 521 (2d...
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