U.S. v. Luskin

• Decision Date: 11 March 1991
• Docket Number: No. 90-7273,90-7273
• Citation: 926 F.2d 372
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul LUSKIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 372

926 F.2d 372

UNITED STATES of America, Plaintiff-Appellee, v. Paul LUSKIN, Defendant-Appellant.

No. 90-7273.

United States Court of Appeals Fourth Circuit.

Argued Nov. 2, 1990.

Decided Feb. 27, 1991.

As Amended March 11, 1991.

Michael S. Lieberman, DiMuro, Ginsburg & Lieberman, P.C., Alexandria, Va. and Benjamin F.L. Darden, Legal Associates of South Florida, Miami, Fla., argued, for defendant-appellant.

Gregg Lewis Bernstein, Asst. U.S. Atty., Baltimore, Md., argued (Breckinridge L. Willcox, U.S. Atty., Baltimore, Md., on brief), for plaintiff-appellee.

Before RUSSELL and MURNAGHAN, Circuit Judges, and CACHERIS, United States District Judge for the Eastern District of Virginia, sitting by designation.

CACHERIS, District Judge:

In 1989, this Court affirmed Paul Luskin's conviction on numerous charges relating to his attempt to have his estranged wife Marie Luskin killed. Shortly thereafter, Luskin was sentenced to a long prison term, and he has appealed this sentence. Among other things, Luskin has raised a question that has not been previously addressed by this circuit: when is it permissible to sentence a defendant to consecutive periods of imprisonment for separate convictions under 18 U.S.C. Sec. 924(c)? That subsection prohibits the carrying or using of a firearm during a "crime of violence" or a "drug trafficking crime." As punishment, it provides for a fixed, mandatory and non-parolable term of imprisonment that must be served consecutive to any other sentence. Ultimately, we reject Luskin's argument that he was improperly given consecutive sentences under section 924(c), and we also reject his other claims of error regarding sentencing. ¹

I.

Because the facts of this case were set forth in this Court's first opinion affirming the convictions, a sketch of the facts will suffice here. In early 1987, Luskin decided to arrange the murder of his wife Marie in order to avoid giving her a portion of his electronics empire as part of their divorce. To that end, he contacted his friend Joe Liberto and told him of his desire to have his wife killed. Acting on that desire, Joe Liberto contacted his brother Jimmy, who in turn hired Milton "Sonny" Cohen to commit the murder. Cohen made his first attempt on March 9, 1987. He shot Marie in the head, but fortunately she lived. Cohen and a confederate, James Manley, made further attempts on May 30, 1987, and July 27, 1987, and these were also unsuccessful. Shortly thereafter, Cohen and Manley were arrested, and Manley told all. His confession ultimately led to Luskin's conviction on numerous charges. These convictions were upheld by this Court. United States v. Luskin, 885 F.2d 867, (4th Cir.1989) [ (table) ]. Luskin petitioned for a writ of certiorari, and that petition was denied. Luskin v. United States, --- U.S. ----, 110 S.Ct. 1807, 108 L.Ed.2d 937 (1990).

The following is a list of Luskin's convictions and the sentence imposed pursuant to each count:

Count I Conspiring with the Liberto brothers and Cohen to kill Marie, to carry a firearm in relation to this crime of violence, and to carry an unregistered firearm. 18 U.S.C. Sec. 371. The sentence was five years.

Count II Causing Cohen to travel in interstate commerce on March 9, 1987, with the intent to commit murder. 18 U.S.C. Sec. 1952A. The sentence was ten years, to run consecutive to Count I.

Count III Causing Cohen to travel in interstate commerce on May 20, 1987, with the intent to commit murder. 18 U.S.C. Sec. 1952A. The sentence was five years, to run concurrently to Count I and consecutively to Count II.

Count IV Causing Cohen to travel in interstate commerce on July 27, 1987, with the intent to commit murder. 18 U.S.C Sec. 1952A. The sentence was five years, to run concurrently to Count I and consecutively to Counts II and III.

Count V Causing the carrying of a firearm in interstate commerce in relation to a crime of violence on March 9, 1987. 18 U.S.C. Sec. 924(c). The sentence was five years, to run consecutively to all other counts, with no parole.

Count VI Causing the carrying of a firearm in interstate commerce in relation to a crime of violence on May 30, 1987. 18 U.S.C. Sec. 924(c). The sentence was five years, to run consecutively to all other counts, with no parole.

Count VII Causing the carrying of a firearm in interstate commerce in relation to a crime of violence on July 27, 1987. 18 U.S.C. Sec. 924(c). The sentence was five years, to run consecutively to all other counts, with no parole.

The remaining counts were gun charges that are not material to this appeal. The sentence for these other charges was five years, to run concurrently with Counts I through IV. In total, Luskin received a sentence of 35 years, 15 of which were not subject to parole. He has appealed this sentence on three grounds.

II.

Luskin first argues that his sentences pursuant to Counts V, VI and VII should have run concurrently to each other, not consecutively. These were Luskin's three convictions for causing Cohen to carry a firearm when Cohen travelled in interstate commerce with the intent to kill Marie, in violation of 18 U.S.C. Sec. 924(c). ² There were three section 924(c) counts (as well as three section 1952A counts) because there were three separate attempts on Marie's life. Among other things, section 924(c) requires the imposition of a non-parolable, mandatory minimum sentence that must run consecutively to all other sentences. Despite the language of section 924(c), Luskin contends that in his case concurrent sentences were required.

Luskin's argument runs like this: Congress did not intend to permit the sentencing of an individual to consecutive terms of imprisonment under section 924(c) when the offender, at base, has only committed one underlying "crime of violence." Admittedly, our law permits the prosecutor to carve up criminal conduct into many counts so that technical problems with the evidence will not allow the true criminal to walk free. However, when it comes time to impose a sentence, prison terms under separate counts that punish the same episode of criminal conduct must run concurrently. In this case, Luskin was sentenced to three consecutive five-year terms for causing Cohen to carry a gun during each of his three attempts to kill Marie. However, Luskin only commissioned the murder scheme one time, and it was Cohen's decision to attempt murder on three occasions. Since Luskin only commissioned the murder attempt once, his section 924(c) gun charges must run concurrently. In sum, Luskin argues that one cannot receive consecutive section 924(c) sentences for one episode of criminal behavior, and that he only participated in one criminal episode--hiring someone to kill his wife.

A.

We reject this argument. It misstates the law developed in other circuits regarding the imposition of consecutive sentences under section 924(c), and it also misstates the facts of this case.

First, Luskin's factual argument is untenable. At trial, it was proven that Luskin did more than commission the murder once and then wash his hands of the matter. For example, as this Court noted in its opinion upholding Luskin's convictions, Luskin offered a $25,000 bonus prior to the third attempt on Marie's life provided that the murder was completed on or before July 28, 1987. In addition, Luskin could have called off the killers and prevented the multiple attempts on Marie's life at any point in the chain of crime. Furthermore, as noted and discussed infra, this Court upheld Luskin's convictions on the three section 924(c) counts because he was liable for them as a coconspirator under the Pinkerton doctrine. Because of that holding, this Court does not need to find that Luskin played an active role in each of the three murder attempts. Yet, we do believe that the evidence of Luskin's ongoing involvement in this murder-for-hire scheme was strong, and we reject Luskin's unsubstantiated factual contention to the contrary.

Second, Luskin's argument has been drawn from the case law of other circuits dealing with section 924(e), not section 924(c ). Section 924(e) is a recidivism statute. It provides that if a person has been previously convicted of three or more "violent" felonies or "serious" drug offenses, and if that person is caught with a firearm that has ever been in interstate commerce (as prohibited by 18 U.S.C. Sec. 922(g)), then the person shall receive a minimum mandatory prison term of fifteen years without parole and up to a $25,000 fine. The three requisite convictions must have been "committed on occasions different from one another." 18 U.S.C. Sec. 924(e). The case law referred to by Luskin tackles the issue of when do convictions represent criminal acts that are "committed on occasions different from one another"? Most if not all of the circuits have interpreted this phrase to mean that the three prerequisite convictions must represent three " 'episodes' of felonious criminal activity that are distinct in time, rather than literal convictions." United States v. Towne, 870 F.2d 880, 889 (2d Cir.), cert. denied, 490 U.S. 1101, 109 S.Ct. 2456, 104 L.Ed.2d 1010 (1989) (the court in Towne cites cases from several other circuits for the same proposition).

In Towne, the defendant had been convicted twice of kidnapping and raping a woman. On both occasions, he had hitchhiked until he was picked up by a female driver, forced her at knifepoint to drive somewhere, and then raped her. In order to find the defendant liable under section 924(e), the trial court counted his rape convictions separately from his kidnapping convictions, so that he had four previous convictions for section 924(e) purposes. The Towne court reversed, holding that each rape and kidnapping should count as one criminal episode, and since the defendant had only two previous criminal episodes, he was not covered by section 924(e).

We express no opinion on the correct interpretation of section 924(e) or on the...