U.S. v. Sash, Docket No. 04-0499-CR.

• Decision Date: 26 January 2005
• Docket Number: Docket No. 04-0499-CR.
• Citation: 396 F.3d 515
• Parties: UNITED STATES of America, Appellee, v. Eliot S. SASH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

396 F.3d 515

UNITED STATES of America, Appellee, v. Eliot S. SASH, Defendant-Appellant.

Docket No. 04-0499-CR.

United States Court of Appeals, Second Circuit.

Argued: October 7, 2004.

Decided: January 26, 2005.

David S. Hammer, New York, NY, for Defendant-Appellant.

Harry A. Chernoff, Assistant United States Attorney (Adam B. Siegel, Assistant United States Attorney; David N. Kelly, United States Attorney for the Southern District of New York, on the brief), New York, NY, for Appellee.

Before: WALKER, Chief Judge, MINER and CABRANES, Circuit Judges.

MINER, Circuit Judge.

Defendant-appellant, Eliot S. Sash ("Sash"), appeals from a judgment of conviction and sentence entered in the United States District Court for the Southern District of New York (Casey, J.) on January 23, 2004, following his guilty plea. Sash pled guilty to two felony counts: (i) possession of fifteen or more counterfeit UPC bar codes for the purpose of fraud, in violation of 18 U.S.C. § 1029(a)(3), (b)(1), (c)(1)(A)(i); and (ii) unlawful production of identification documents "of a type intended and commonly accepted for the purpose of identifying an individual as an officer of the New York City Police Department," in violation of 18 U.S.C. § 1028(a)(1), (b)(1)(B). The District Court sentenced Sash to a twenty-seven-month term of imprisonment. In reaching the sentence imposed, the court applied a two-level sentencing enhancement, pursuant to section 2B1.1(b)(9)(C)(ii) of the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines"),¹ based upon the court's determination that Sash possessed five or more means of identification that were produced unlawfully from another means of identification. The District Court also imposed an eight-year term of supervised release and ordered restitution in the amount of $2,000 and a special assessment of $200.

On appeal, Sash challenges the two-level sentencing enhancement and the term of supervised release. For the reasons that follow, we agree with the District Court's imposition of the two-level sentencing enhancement. We conclude, however, in accordance with the Government's concession, that the District Court erred in imposing supervised release for a term of eight years.

BACKGROUND

On September 4, 2002, a search warrant was executed at the home of defendant-appellant, revealing thousands of federal, state, and local law-enforcement identification documents and badges, along with the tools and components necessary to fabricate such items. A number of New York City Police Department ("NYPD") badges were seized in the course of the search. These badges bore actual, unique numbers assigned by the NYPD to individual officers, and appeared to be authentic. However, the NYPD never authorized Sash or anyone else to fabricate the badges that were discovered in the search. A twenty-one-count indictment (the "Indictment") was returned against Sash on November 27, 2002, charging him in various counts with: producing, and unlawfully possessing with the intent to transfer, hundreds of NYPD identification cards and badges; selling counterfeit badges through the mail to an individual in Kansas; and making false statements to the United States Customs Service in order to secure the release of hundreds of badge components shipped from Taiwan.

While free on bail pending trial on the Indictment, Sash was arrested in New Jersey on December 30, 2002. At the time of his arrest, he was found to possess counterfeit UPC bar codes for K-Mart stores. Sash's arrest of December 30 resulted in the revocation of his bail on January 2, 2003. On February 26, 2003, a twenty-four-count superseding indictment (the "Superseding Indictment") was returned, adding charges of access-device fraud based on Sash's fraudulent use of K-Mart UPC bar codes to return digital videodiscs for more money than their sale prices, in violation of 18 U.S.C. § 1029(a)(1), (2), and (5), 1029(b)(1) and (2).

After the parties had commenced plea negotiations, Sash waived prosecution by indictment and consented that "the proceeding... be by information instead of by indictment." On June 26, 2003, a superseding information (the "Superseding Information") was filed, charging Sash in count one ("Count One") with "unlawfully, willfully, knowingly and without lawful authority ... transferr[ing] and transport[ing], in the mail and in and affecting interstate and foreign commerce, numerous means of identification of another person with the intent to commit and to aid and abet unlawful activity that ... violat[ed] Federal law, to wit, [Sash] transferred counterfeit police badges to individuals whose receipt, possession, transfer and use of the badges violated Federal laws, and, as a result, [Sash] obtained more than $1,000 during a one-year period," in violation of 18 U.S.C. §§ 1028(a)(7), (b)(1)(D), (c)(3)(A), (B), and 716. Count Two ("Count Two") of the Superseding Information charged Sash with unlawfully possessing "fifteen and more counterfeit access devices, to wit, [Sash] possessed numerous counterfeit UPC bar codes for the purpose of defrauding K-Mart stores," in violation of 18 U.S.C. § 1029(a)(3), (b)(1), and (c)(1)(A)(i).

On June 26, 2003, Sash attempted to plead guilty to both counts in the Superseding Information. In Sash's plea allocution, he stated:

My main business was making duplicate police badges for police officers. I actually had [sixty] percent of the NYPD police supply stores as my customers.

... I do accept [the prosecutor's] explanation ... that ... my business activity in providing the police supply stores and directly to police officers since it is against department policy for them to have [duplicate badges], violated the statute....

Sash also explained that he sold police badges to collectors, in addition to many television shows and movie production companies:

I did sell two badges ... to their undercover ... who is a retired State of Kansas sheriff. But he represented himself to me as a collector. The first badge he got was a movie prop from the movie Shaft. The second was a New York City detective badge with a specific number that he requested on it which was for his collection which is allowed, the sale of that. And the transportation interstate is allowed as one of the defenses under [18 U.S.C. §] 716, however, I have to agree to [the prosecutor's] explanation that the manufacture was the unlawful activity.

Sash continued to explain during his plea allocution that he made "three or four thousand badges during [the year]" described in the Superseding Information ("2001 through in or about 2002"). Sash also admitted to having received more than $1,000 in proceeds from the manufacture and sale of police badges in interstate commerce during the at-issue time period. During his plea allocution, Sash also pled guilty to Count Two of the Superseding Information, explaining that he "took double packs of DVDs, split them apart, put a fake UPC sticker on one and returned it for the value of a double pack, so getting the price of the value for one as two." Sash stated that he engaged in this conduct at a "Kmart" store during the period referenced in Count Two — May 6, 2002 through January 16, 2003 — and that he possessed "[m]ore than 15" counterfeit access devices.

Following Sash's plea allocution, the Government determined that it could not recommend that the District Judge accept Sash's plea of guilty to Count One of the Superseding Information, due to certain equivocations in Sash's plea allocution of June 26. Following a conference with the court on August 8, 2003, at which time Sash discharged his counsel, Sash appeared with new counsel before Magistrate Judge Ronald L. Ellis on September 30, 2003 to plead guilty to Count Two of the Superseding Indictment.²

Sash's allocution on September 30, 2003, included the statement that he

unlawfully, willfully and knowingly did produce duplicate police badges ... knowing that such police badges were produced without lawful authority. To wit, I produced hundreds of duplicate police badges of a type intended and commonly accepted for the purpose of identifying an individual as an officer of the [NYPD], and I transferred these badges to New York City police officers, detectives, sergeants and lieutenants. The parts for making these duplicate badges were manufactured by a factory for me in Taiwan and shipped to me through the U.S. mail. And they were produced without the authority of the New York City police commissioner.

Sash also admitted that he sold badges through the mail to persons who were not police officers. On October 20, 2003, the District Judge accepted Sash's pleas to Count Two of the Superseding Information and to Count Two of the Superseding Indictment.

The United States Probation Office determined that Sash's base offense level was 12, which included an upward departure, pursuant to U.S.S.G. § 2B1.1(b)(9)(C)(ii), because "the offense involved ... the possession of [five] or more means of identification that unlawfully were produced from, or obtained by the use of, another means of identification," including five or more means of identification of actual individuals. Sash's offense level was increased to 15 because he committed his crime while on pretrial release. After applying the grouping rules of § 3D1.1 et seq., and imposing a three-level downward departure for Sash's acceptance of responsibility, the Probation Office determined that Sash's total offense level was 14. With a criminal history category of III and total offense level of 14, Sash faced a Guidelines range of twenty to twenty-seven months' imprisonment. The Probation Office recommended a sentence of imprisonment of twenty-seven months plus an upward departure based upon Sash's under-represented criminal history.

Among other things, Sash objected to the application of the sentencing enhancement under § 2B1.1(b)(9)(C)(ii) for possession of multiple identifications (the "Enhancement"). By letter...