United States v. Cain

• Citation: 671 F.3d 271
• Decision Date: 31 January 2012
• Docket Number: 09–2643–CR (CON),Nos. 09–0707–cr (L),10–0240(CON).,s. 09–0707–cr (L)
• Parties: UNITED STATES of America, Appellee, v. David CAIN, Jr., Chris Cain, Jamie Soha, Defendants–Appellants,Patrick Ackroyd, Defendant.*
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

671 F.3d 271

UNITED STATES of America, Appellee,

v.David CAIN, Jr., Chris Cain, Jamie Soha, Defendants–Appellants,Patrick Ackroyd, Defendant.*

Nos. 09–0707–cr (L)

09–2643–CR (CON)

10–0240(CON).

United States Court of Appeals, Second Circuit.

Argued: Oct. 11, 2011.Decided: Jan. 31, 2012.

Charles F. Willson, Nevins & Nevins LLP, East Hartford, CT, for Defendant–Appellant David Cain, Jr.

Marc Fernich, New York, New York, for Defendant–Appellant Chris Cain.

Jonathan Svetkey, Watters & Svetkey, LLP, New York, New York, for Defendant–Appellant Jamie Soha.Stephan J. Baczynski, Assistant United States Attorney, for William J. Hochul, Jr., United States Attorney for the Western District of New York, for Appellee.Before: NEWMAN and LYNCH, Circuit Judges, and RESTANI, Judge. ^**GERARD E. LYNCH, Circuit Judge:

David Cain, Jr., Chris Cain, and Jamie Soha appeal from judgments entered on January 12, 2009, March 31, 2009, and December 18, 2009, respectively, following a jury trial in the United States District Court for the Western District of New York (Richard J. Arcara, Judge ) that resulted in their convictions for racketeering and various related offenses.

The defendants raise several challenges to their convictions. All three contend, inter alia, that the district court erred in failing to instruct the jury on the relatedness and continuity showings required to establish a pattern of racketeering under the Racketeering Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c) and (d). Separately, David Cain ¹ and Jamie Soha maintain that the evidence presented at trial was insufficient to support their convictions on three substantive counts of extortion. Each appellant also raises a number of issues that implicate only his own conviction. Most significantly, David Cain argues that he was denied his constitutional right to counsel of his choice when his retained attorney was disqualified pre-trial on the basis of a conflict of interest.

Having reviewed these arguments, we conclude that the district court's RICO instruction was legally erroneous and that this error was prejudicial with regard to Chris Cain. With regard to the racketeering convictions of David Cain and Jamie Soha, however, applying a plain error standard of review, we conclude that it is not reasonably likely that a properly instructed jury would have failed to find that the proven predicates were sufficiently interrelated and continuous to constitute a pattern of racketeering. Accordingly, with regard to Chris Cain, we reverse the RICO convictions and remand for resentencing. For the benefit of the district court on remand, we also note several errors in the calculation of the sentencing guidelines applicable to Chris Cain. We affirm the convictions in all other respects.

BACKGROUND

On October 3, 2007, a federal grand jury in the Western District of New York returned a 21–count indictment charging David Cain, his brother Chris Cain, and their cousin Jamie Soha with participating in and conspiring to participate in the conduct of the affairs of an association-in-fact enterprise through a pattern of racketeering activity, in violation of RICO, 18 U.S.C. § 1962(c) and (d), as well as with a variety of other substantive crimes allegedly connected to or arising out of that participation. The racketeering counts were predicated on twenty violations of state or federal law, including primarily various acts of extortion and arson, each of which was detailed in the indictment.

The case was tried to a jury over the course of six weeks in the fall of 2007. Proof at trial included the testimony of 60 witnesses, 241 exhibits and several stipulations among the parties. In support of the racketeering allegations, the government argued that during the period from 1994 to 2005 the defendants participated in a loosely-organized gang, headed by David Cain, whose purpose was the enrichment of its members and the avoidance of detection and prosecution by state and federal authorities. Much of the testimony was provided by cooperating witnesses who testified as to their involvement with various defendants in acts of extortion, marijuana trafficking, arson, robbery, insurance fraud and witness and evidence tampering.

On December 7, 2007, the jury returned guilty verdicts against all three defendants. Defendant David Cain was convicted of racketeering (18 U.S.C. § 1962(c)), racketeering conspiracy (18 U.S.C. § 1962(d)), mail fraud (18 U.S.C. § 1341), three counts of using fire to commit a felony (18 U.S.C. § 844(h)), three counts of extortion (18 U.S.C. § 1951), destruction of a civil aircraft (18 U.S.C. § 32(a)), destruction of a facility used in interstate commerce (18 U.S.C. § 844(i)), three counts of witness tampering (18 U.S.C. § 1512(b)(3)), concealment of evidence (18 U.S.C. § 1512(c)(1)) and conspiracy to commit the same (18 U.S.C. § 1512(k)). The district court sentenced him to a cumulative 660 months in prison and ordered that he pay restitution in the amount of $599,330.45. Defendant Chris Cain was convicted of racketeering, racketeering conspiracy, mail fraud, use of fire to commit a felony, and conspiracy to distribute marijuana (21 U.S.C. §§ 841, 846). The district court sentenced him to 355 months in prison and ordered that he pay restitution in the amount of $24,000. Defendant Jamie Soha was convicted of racketeering conspiracy, three counts of extortion, and one count of using of fire to commit a felony. He was sentenced to 144 months in prison and was ordered to pay restitution in the amount of $314,123.72.²

DISCUSSION

On appeal, the defendants challenge their convictions on numerous grounds. David Cain and Jamie Soha maintain that the evidence presented at trial was insufficient to sustain their convictions with regard to the three counts of extortion on which the jury returned guilty verdicts against them. All three appellants argue that the district court prejudicially erred in failing to instruct the jury on the relatedness and continuity requirement of RICO's pattern of racketeering element. Each of the defendants also raises issues that pertain specifically to his own conviction. We address the shared claims first, followed by those that are unique to each defendant's appeal. For the benefit of the reader, we discuss the extensive factual record only where necessary to address the particular claims at issue.

I. The David's Tree Service Extortion Counts

At the core of the government's case against David Cain were allegations that he supervised Jamie Soha and numerous other associates, many of whom testified at trial, in a criminal campaign aimed at cornering the tree service and logging market in northwest New York State. Consistent with this theory, the indictment charged Cain and Soha with three counts of extortion in connection with their efforts to take over business from Keith Kent, Chuck Bracey and Dan Gollus, all of whom were competitors of Cain's company, David's Tree Service. The jury returned guilty verdicts against both defendants on all three counts and the corresponding RICO predicates. On appeal, Soha (joined by David Cain) argues that the proof at trial was inadequate to sustain the jury's guilty finding on the three extortion charges.

The Hobbs Act, the statute under which the defendants were convicted, defines “extortion” as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” 18 U.S.C. § 1951(b)(2). In asserting that the evidence at trial was insufficient for the jury to find that this definition was satisfied, the defendants rely heavily on Scheidler v. National Organization for Women, Inc., in which the Supreme Court suggested that property is “obtained” within the meaning of the Hobbs Act only if the defendants “received something of value ... that they could exercise, transfer, or sell.” 537 U.S. 393, 405, 123 S.Ct. 1057, 154 L.Ed.2d 991 (2003) (internal quotation marks omitted). The defendants argue that because the government introduced no evidence that through their coercive conduct they obtained specific tree service jobs or a quantifiable portion of the tree-service market, it failed to carry its burden under Scheidler. This argument is unpersuasive for several reasons.

At the outset, Soha and Cain ignore the fact that the indictment charged attempted extortion as well as the substantive crime, and the jury was accordingly instructed as to the elements of attempt liability. The government therefore was not required to establish that David Cain or Jamie Soha in fact obtained any specific property belonging to the extortion victims but merely that they intended to do so and took a substantial step in furtherance of that goal. See United States v. Yousef, 327 F.3d 56, 134 (2d Cir.2003). Construing the evidence in the light most favorable to the government, see United States v. Zhou, 428 F.3d 361, 369–70 (2d Cir.2005), we see ample basis on which the jury could conclude that David Cain, aided and abetted by Jamie Soha, attempted to extort specific tree service and logging work from Kent, Bracey and Gollus.

For example, the evidence demonstrated that prior to the January 2001 vandalism incident upon which the first extortion count—involving Keith Kent—was based, David Cain had established a pattern of making violent threats in order to deter Kent from competing for specific jobs. Kent testified that in 1999 he and Cain had considered collaborating in a logging job on the property of Tanya and Dan Hillman, but Cain ultimately cut him out of the negotiations. When Kent subsequently visited the Hillman property himself, he encountered Cain, who shouted at him in a “threatening tone,” “What the hell are you doing on the property[?] ... You better get the hell out of here. I'm going to get you. I'm not scared of you.”

In May 2000 a similar incident occurred when Elizabeth Dietmann hired...