12‐3313‐cr
United States v. Crandall
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM 2013
No. 12‐3313‐cr
UNITED STATES OF AMERICA,
Appellee,
v.
GEORGE S. CRANDALL, AKA George Crandall,
Defendant‐Appellant,
________
Appeal from the United States District Court
for the Northern District of New York.
No. 10 CR 36‐1 (FJS) ― Frederick J. Scullin, Jr., Judge.
________
ARGUED: OCTOBER 29, 2013
DECIDED: APRIL 10, 2014
________
Before: WALKER, CABRANES, and PARKER, Circuit Judges.
________
Defendant George Crandall appeals the judgment of the
United States District Court for the Northern District of New York
(Frederick J. Scullin, Jr., Judge) convicting him of being a felon in
possession of a firearm and ammunition, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). Crandall contends that a continuous
2 No. 12‐3313‐cr
hearing impairment rendered his trial constitutionally defective in
violation of his Sixth Amendment rights to, inter alia, be present,
assist in his defense, and confront witnesses against him. We hold
that the Sixth Amendment requires reasonable accommodations for
hearing‐impaired criminal defendants during judicial proceedings
and that such accommodations must be commensurate with the
severity of the hearing impairment. Where a criminal defendant
does not notify the District Court of the impairment, however, he is
only entitled to accommodations commensurate with the degree of
difficulty that was, or reasonably should have been, clear or obvious
to the District Judge.
We hold, based upon a review of the record, that Crandall
received accommodations commensurate with the degree of
difficulty that was, or reasonably should have been, clear or obvious
to the District Judge.
Accordingly, we AFFIRM the judgment of the District Court.
________
PAUL J. ANGIOLETTI, Staten Island, NY, for
Appellant George S. Crandall.
PAUL D. SILVER, Assistant United States Attorney,
(Richard S. Hartunian, United States Attorney for
the Northern District of New York, Brenda K.
Sannes, Assistant United States Attorney, on the
brief), Syracuse, NY, for Appellee United States of
America.
________
3 No. 12‐3313‐cr
JOSÉ A. CABRANES, Circuit Judge:
Defendant‐appellant George Crandall (“Crandall”) was
convicted in the United States District Court for the Northern
District of New York (Frederick J. Scullin, Jr., Judge), after trial by
jury, of being a felon in possession of a firearm and ammunition, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).1 On appeal,
Crandall argues that his due process rights were violated because of
a hearing impairment that allegedly prevented him from exercising
his Sixth Amendment rights to, inter alia, be present, assist in his
defense, and confront witnesses against him.2
We hold that the Sixth Amendment requires reasonable
accommodations for hearing‐impaired criminal defendants during
judicial proceedings and that such accommodations must be
commensurate with the severity of the hearing impairment. Where
1 Under 18 U.S.C. § 922(g)(1), “[i]t shall be unlawful for any person who has been
convicted in any court of, a crime punishable by imprisonment for a term exceeding one
year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting
commerce, any firearm or ammunition; or to receive any firearm or ammunition which
has been shipped or transported in interstate or foreign commerce.” Under 18 U.S.C.
§ 924(a)(2), “[w]hoever knowingly violates [18 U.S.C. § 922(g)] shall be fined as provided
in this title, imprisoned not more than 10 years, or both.”
2 Additional claims raised by Crandall in this appeal are: (1) a challenge to the
sufficiency of the evidence at trial; (2) that the jury instructions were flawed in numerous
ways, including the failure to include (a) an instruction on the need for “substantial
similarity” between the date of the offense charged in the indictment and that of the
offense proved at trial, (b) the definition of “firearm” and an instruction that Crandall
needed to know that what he possessed was a firearm, (c) a limiting instruction
regarding evidence of Crandall’s prior felony conviction, and (d) an instruction that
exercising dominion and control over a premises does not require a finding of dominion
and control over firearms or ammunition found in that premises; (3) that the District
Court incorrectly held, after a suppression hearing, that Crandall had heard and
understood his Miranda rights; (4) that his trial counsel provided ineffective assistance;
and (5) that the sentence imposed was unreasonable. After careful consideration, we
conclude that these claims are meritless.
4 No. 12‐3313‐cr
a criminal defendant does not notify the District Court of the
impairment, however, he is only entitled to accommodations
commensurate with the degree of difficulty that was, or reasonably
should have been, clear or obvious to the District Judge.
We hold, based upon a review of the record, that Crandall
received accommodations commensurate with the degree of
difficulty that was, or reasonably should have been, clear or obvious
to the District Judge.
Accordingly, we AFFIRM the judgment of conviction.
BACKGROUND
On January 7, 2010, a federal Grand Jury returned an
indictment charging Crandall with one count of felon‐in‐possession
of a firearm and one count of felon‐in‐possession of ammunition, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).3
On March 16, 2011, the District Court held a suppression
hearing to determine whether to admit statements made by Crandall
during his arrest. During the first witness’s testimony, Crandall’s
counsel stated, “Your Honor, at this time we’d like to interject, Mr.
Crandall has a hearing problem, he does have his hearing aids in but
he’s still having difficulty hearing.” Gov’t App. 7. The District
Judge asked the clerk to turn up the volume on the microphone, and
after the clerk said it was at the highest volume, the Judge instructed
the witness “to speak up.” Id. at 8. There was no other indication by
Crandall or his counsel that Crandall was thereafter having
difficulty hearing during the hour‐long proceeding.
3 The only issue addressed in this opinion relates to Crandall’s rights during
judicial proceedings. Accordingly, we need not address in depth the basis for the
charges against him.
5 No. 12‐3313‐cr
Crandall’s jury trial took place before Judge Scullin on June
27‐28, 2011. At the beginning of jury selection, the District Judge
asked Crandall whether his court‐provided hearing device was
functioning, and Crandall responded that it was “making a fuzzy
noise.” Gov’t App. 66. The Judge replied, “You might want to try
without it because I think the acoustics in here are good enough.”
Id. Neither Crandall nor his counsel suggested that the Judge was
mistaken. At another point, the Judge admonished Crandall for
speaking loudly to his investigator; Crandall stated that he could not
hear the Judge’s admonishment clearly, and that he “didn’t think
[he] was speaking out loud.” Id. at 133‐34.
Crandall testified at trial, adequately responding to questions
on both direct and cross examination. At one point during his
testimony, Crandall asked his lawyer to push the microphone closer,
and on several occasions asked that a question be repeated.
During a cross‐examination of one witness, Crandall’s counsel
asked if the witness knew that Crandall “has very poor hearing?”
Gov’t App. 92. The witness responded, “I know he has told me in
the past he has poor hearing. I also know he has heard me when I
talk to him.” Id. Crandall’s counsel then stated, “[H]e has an aid
here today. Are you aware [ ] that he is using an aid?,” at which
point counsel moved on to another question. Id.
On June 28, 2011, the jury convicted Crandall on both counts
of the indictment, and he was released on bail pending sentencing.
After Crandall allegedly violated the conditions of his
presentence release, Judge Scullin held a bail revocation hearing on
March 8, 2012. At the outset of the proceeding, defense counsel
informed the Judge that he “want[s] to make certain that [his] client
hears what’s going on in this proceeding.” Gov’t App. 176. In
response, the Judge instructed defense counsel to “[a]dvise your
6 No. 12‐3313‐cr
client if he has difficulty hearing, to advise you and you can advise
me.” Gov’t App. 176‐77. Counsel so notified Crandall, who then
responded that he was not wearing his hearing aid. The Judge
instructed the testifying witness to speak into the microphone as
loudly as he could, and neither Crandall nor his counsel thereafter
notified the Judge of hearing‐related difficulties. Crandall testified
during this proceeding as well, and after his testimony, the Judge
noted that “[h]e hears quite well.” Id. at 179.
Crandall was sentenced on August 9, 2012. At his sentencing
hearing, Crandall submitted a handwritten “Sentencing Statement
Affidavit” to the District Court asserting numerous claims
including, for the first time, that “I could not hear my trial, witnesses
[sic] testimony, or the Judge [sic] ruling. I could not even
communicate with my Attorney because he tried wispering [sic] and
it was on deaf ears.” Appellant’s App. 128. He claimed, also for the
first time, that this was due in part to the fact that the hearing
device—the buzzing of which he had complained about before jury
selection—had subsequently gone dead. Crandall wrote that this
“impaired my reason and comprehension and hampered my ability
to effectively consult and communicate with my Court appointed
counsels [sic] which was physical as well as mental.” Id. at 129.
The District Court sentenced Crandall principally to two
concurrent terms of thirty‐three months’ imprisonment, the top of
the applicable guidelines range identified by the United States
Probation Office in its Pre‐Sentence Investigation Report. After the
Court imposed the sentence, Crandall stated, “Your Honor, I
couldn’t make out half what you were sayin’, but is there any way I
can get a copy of [the sentencing minutes] to know what you’re
sayin’ . . . .” Id. at 118.
This timely appeal followed.
7 No. 12‐3313‐cr
DISCUSSION
On appeal, Crandall contends that his hearing impairment
rendered his trial constitutionally defective in violation of his Sixth
Amendment rights to, inter alia, be present, assist in his defense, and
confront witnesses against him. He claims further that the District
Court should have known about his hearing disability, which the
District Court “either dealt with half‐heartedly or ignored”
altogether. Appellant’s Br. 25.
As a preliminary matter, whether Crandall adequately raised
this issue during the proceedings below affects our standard of
review. We review a claim raised in the District Court for “harmless
error,” see Fed. R. Crim. P. 52(a), whereas a claim not raised in the
District Court is reviewed under the more deferential “plain error”
standard, see Fed. R. Crim. P. 52(b).4 We conclude that the claim of a
continuous hearing impairment was not adequately raised below.5
4 The Supreme Court has instructed that a finding of “plain error” requires that:
(1) there is an error; (2) the error is clear or obvious, rather than subject to
reasonable dispute; (3) the error affected the appellant’s substantial rights, which
in the ordinary case means it affected the outcome of the district court
proceedings; and (4) the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.
United States v. Tarbell, 728 F.3d 122, 126 (2d Cir. 2013) (quoting United States v. Marcus,
560 U.S. 258, 262 (2010)). In other words, “[t]o be plain, an error of the district court must
be obviously wrong in light of existing law.” United States v. Youngs, 687 F.3d 56, 59 (2d
Cir. 2012) (internal quotation marks omitted).
5
While the record reveals that Judge Scullin was alerted to Crandall’s difficulty
hearing on several occasions, there is no indication that Crandall or his attorney ever
made Judge Scullin aware that Crandall’s hearing was an ongoing problem requiring a
continuous solution. Crandall concedes as much, stating in his brief that “the record
does not contain instances of Crandall (or his attorney) proactively informing the court of
8 No. 12‐3313‐cr
Nevertheless, out of an abundance of caution, we note that
because we find no error in the District Court’s actions, the outcome
would be the same regardless of the standard of review.
A. Sixth Amendment Right to Accommodations
Four decades ago, the Supreme Court held that “[t]he right of
an accused in a criminal trial to due process is, in essence, the right
to a fair opportunity to defend against the State’s accusations.”
Chambers v. Mississippi, 410 U.S. 284, 294 (1973). This right stems
from the Sixth Amendment’s Compulsory Process and
Confrontation Clauses, and guarantees a criminal defendant is
provided with “a meaningful opportunity to present a complete
defense.” Hawkins v. Costello, 460 F.3d 238, 243 (2d Cir. 2006)
(quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)). In practical
terms, this means that a criminal defendant must “possess sufficient
present ability to consult with his lawyer with a reasonable degree
of rational understanding”; otherwise, the proceeding would be
merely “an invective against an insensible object.” United States ex
rel. Negron v. New York, 434 F.2d 386, 389 (2d Cir. 1970) (internal
quotation marks omitted).
Relying on these concepts, Crandall now argues that the
District Court failed to take adequate steps to accommodate his
hearing impairment to ensure that he was able to understand and
participate in the proceedings, and that this failure rendered his trial
constitutionally defective. What the Sixth Amendment requires for
those with hearing impairments is a matter of first impression for
our Court, although our jurisprudence regarding non‐English
speaking defendants provides considerable guidance.
hearing difficulties . . . .” Appellant’s Br. 25. Similarly, Crandall never moved for a
mistrial based upon an allegation that he had been unable to hear the proceedings.
9 No. 12‐3313‐cr
We now hold, as an initial matter, that the Sixth Amendment
right to participate in one’s own trial encompasses the right to
reasonable accommodations for impairments to that participation,
including hearing impairments. Cf. Negron, 434 F.2d at 390 (holding
that a defendant who spoke no English, and “s[a]t in total
incomprehension as the trial proceeded,” was not sufficiently
“present” to satisfy the dictates of the Sixth Amendment).
Yet the Sixth Amendment does not create an absolute right to
the elimination of all difficulties or impairments that may hinder a
criminal defendant’s capacity to perfectly comprehend, and
participate in, court proceedings. Perfect participation by a criminal
defendant is optimal, but perfection is not required by the Sixth
Amendment. See McDonough Power Equip., Inc. v. Greenwood, 464
U.S. 548, 553 (1984) (noting that the Supreme Court “has long held
that a litigant is entitled to a fair trial but not a perfect one, for there
are no perfect trials” (internal quotation marks and alteration
omitted)).
Accordingly, the Sixth Amendment right to hearing‐related
accommodations is limited to those reasonable accommodations that
are requested by the defendant before or during trial, or the need for
which is, or should reasonably be, clear or obvious to the district
judge. See Valladares v. United States, 871 F.2d 1564, 1566 (11th Cir.
1989) (Retired Justice Lewis F. Powell, Jr., sitting by designation)
(“To allow a defendant to remain silent throughout the trial and
then, upon being found guilty, to assert a claim of inadequate
[language] translation would be an open invitation to abuse.”).
In reaching this conclusion, we agree with the reasoning of
several district courts that have addressed similar circumstances.
See, e.g., Hoke v. Miller, No. 02‐cv‐0516, 2007 WL 2292992, at *6
(N.D.N.Y. Aug. 6, 2007) (“[T]he trial court and prosecutor were
10 No. 12‐3313‐cr
made aware of Petitioner’s hearing difficulties and made
accommodations to address the issue. Petitioner never requested
that additional accommodations be made or advised the trial court
that he was unable to participate meaningfully in his defense. There
also does not appear to be any evidence that Petitioner’s impairment
was so obvious that the trial court could reasonably have been
expected, sua sponte, to take further measures.”); Phillips v. Miller,
No. 01 Civ. 1175(DF), 2000 WL 33650803, at *13 (S.D.N.Y. Dec. 3,
2000) (“In this case, Petitioner never requested any interpretive
assistance. Thus, the only remaining question is whether
Petitioner’s hearing‐impairment was obvious to the trial court, so as
to have required the court to act sua sponte to provide interpretive
assistance.”).
This standard is also consistent with the statute governing the
provision of interpreters for the hearing‐impaired in federal courts,
the Court Interpreters Act, 28 U.S.C. § 1827.6 The statute states that
interpretation services are to be made available in federal
proceedings, “if the presiding judicial officer determines on such
officer’s own motion or on the motion of a party” that the party or a
witness “suffers from a hearing impairment . . . so as to inhibit such
party’s [or witness’s] comprehension of the proceedings or
communication with counsel or the presiding judicial officer . . . . ”
Id. § (d)(1). The statute clearly anticipates that the presiding judicial
officer—typically, a district judge—is to determine whether an
interpreter, including a sign‐language interpreter, see id. § (l), is
warranted. The judge’s inquiry is to be triggered either when a
party or witness raises the issue, or when the judge “determines” of
his own volition that it should be raised.
6
Since Crandall brings only a constitutional claim, and does not assert that the
District Judge violated his duty under the Court Interpreters Act, we invoke the statute
only to inform our constitutional analysis.
11 No. 12‐3313‐cr
B. Adequacy of the Accommodations Provided
Having set forth the standard to be applied in assessing when
a defendant is entitled under the Sixth Amendment to
accommodations for hearing impairments during judicial
proceedings, we now assess what, if any, accommodations the
District Court was required to make for Crandall, in view of what
the Court knew, or should have perceived, about his hearing
impairment.
1. The District Court Did Not Have Notice of an Ongoing
Hearing Impairment
As Crandall concedes, he did not notify the District Judge of a
continuous inability to hear the proceedings, either before or during
trial. See Def. Br. at 25 (stating that “the record does not contain
instances of Crandall (or his attorney) proactively informing the
court of hearing difficulties . . . .”).7 Having failed to notify the
7 Among other reasons, because Crandall did not assert, and there was no reason
to believe, that he was unable to hear the proceedings on an ongoing basis, his reliance
on Ferrell v. Estelle, a habeas case from the Fifth Circuit, is misplaced. 568 F.2d 1128 (5th
Cir. 1978), mandate withdrawn on other grounds, 573 F.2d 867 (5th Cir. 1978). There, the
petitioner, who had become completely deaf between the time of the alleged crime and
the time of his trial, asserted that the minimal accommodations that had been offered to
him at trial constituted a violation of his right to confront the witnesses against him and
to assist in his own defense. Id. at 1129‐30. Before trial began, the petitioner’s attorney
made a formal request to the judge that stenographers be appointed to simultaneously
transcribe the trial in “real time.” Id. at 1130. This request was denied by the judge, who
did not explore alternative accommodations, but rather, assured counsel that he would
provide him with as much time as needed to confer with his client. Id. Defense counsel
ultimately requested a recess to confer with the petitioner only twice during the course of
the trial. Id. The Fifth Circuit granted Ferrell a new trial on the basis of ineffective
assistance of counsel, after finding that “Ferrell’s attorney presented only the transcript
alternative and then failed to take full advantage of the court’s willingness to grant
frequent recesses, [and so] he left in doubt whether he failed in his duty to court and
client.” Id. at 1133.
12 No. 12‐3313‐cr
Judge of a continuous inability to hear the proceedings, Crandall
was only entitled to accommodations insofar as his impairment was,
or reasonably should have been, clear or obvious to the District
Judge.
While the record contains instances in which Crandall
apparently could not hear a particular question or statement, there is
considerable evidence that his hearing faculties were adequate, and
appeared as such to the District Judge. Crandall testified
responsively at trial, as well as during his bail revocation
proceeding. During Crandall’s testimony in the bail revocation
hearing, defense counsel stated that he wanted to make sure
Crandall could hear him; and the District Judge responded, “He can
hear you.” Gov’t App at 171. When Crandall’s testimony was
concluded, the District Judge remarked that “[h]e hears quite well.”
Gov’t App. at 172.8
The District Judge’s findings on the record regarding
Crandall’s hearing capability at various points during the
proceedings before him are entitled to customary appellate
deference, inasmuch as he had the benefit of personally observing
Crandall’s demeanor and behavior in the courtroom. Cf. United
8 It remains unclear from the record how Crandall obtained the initial court‐
provided hearing device. That Crandall had such a device certainly would have alerted
the District Judge to some hearing difficulty as an initial matter, but would have also
justified the belief that the impairment had been addressed. Crandall notified the Judge
before jury selection began that the device was emitting a “fuzzy sound,” and the Judge
instructed him to try hearing without it and rely upon the good acoustics in the
courtroom. Gov’t App. at 66. After that, the Judge was able to observe Crandall’s
hearing capabilities, which he deemed adequate, and was never notified otherwise. The
sentencing affidavit handwritten by Crandall constituted the first notice the District
Court had that Crandall claimed to have experienced continuous hearing difficulty
throughout the proceedings; it was submitted at his sentencing on August 9, 2012, long
after the trial had concluded.
13 No. 12‐3313‐cr
States v. Weissman, 195 F.3d 96, 99 (2d Cir. 1999) (“A Court of
Appeals must accord great deference to the trial court’s findings
regarding credibility because the trial judge is in the best position to
evaluate a witness’s demeanor and tone of voice as well as other
mannerisms that bear heavily on one’s belief in what the witness
says.” (internal quotation marks omitted)).9
2. The Accommodations the District Court Made for Crandall
Were Adequate in Light of What it Knew or Reasonably
Should Have Known
Insofar as Crandall’s various, isolated indications of hearing‐
related trouble put, or reasonably should have put, the District
Court on notice that Crandall had some degree of difficulty, we
conclude that the District Court provided him with adequate
accommodations.
The degree of accommodations required varies from case to
case on a sliding scale, depending on the degree of severity of the
impairment. Cf. United States v. Sanchez, 483 F.2d 1052, 1056 (2d Cir.
9 The District Judge’s observations regarding Crandall’s hearing capabilities find
support in the evidence presented at trial as well. While Crandall’s claim on appeal
relates only to hearing‐related difficulties he allegedly experienced during the relevant
judicial proceedings, he claims that his hearing impairment extended as far back as the
time of his arrest. However, the trial evidence included transcripts of several phone calls
Crandall conducted while imprisoned, which reveal him to be capable of normal,
unassisted conversation. Two ATF agents who arrested Crandall on the federal charges
and transported him by car to the federal detention facility in Albany both testified to
having had a “continuous,” “back and forth” conversation with him during the forty‐five
to fifty minute drive. Gov’t App. at 32‐33. During that otherwise regular interaction,
there were only minor manifestations of difficulty, such as Crandall’s saying that he was
hard of hearing and asking them to speak up, and his inching forward in his seat.
14 No. 12‐3313‐cr
1973) (lack of Spanish interpreter did not violate the Sixth
Amendment where Spanish‐speaking defendant “had facility with
the English language” and was provided Spanish‐speaking counsel
by the court); United States v. Diaz Berrios, 441 F.2d 1125, 1127 (2d
Cir. 1971) (rejecting constitutional challenge to conviction where
defendant spoke no English but received “continuous translation”
throughout trial). And as we have already explained, if a defendant
does not notify the district judge of the impairment, he is only
entitled to accommodations insofar as his impairment was, or
reasonably should have been, clear or obvious to the District Judge.
The determination of where a particular defendant falls on the
spectrum of disability, and what accommodations are warranted
based upon the degree of disability, is a determination to be made in
the first instance by the District Court. Cf. United States v. Sandoval,
347 F.3d 627, 632 (7th Cir. 2003) (noting, in a case brought under the
Court Interpreters Act involving interpretation for a Spanish‐
speaking defendant, that “[t]he district court is afforded wide
discretion in implementing the [ ] Act because it is in the best
position to evaluate the need for and the performance of
interpreters”); Valladares, 871 F.2d at 1566 (noting, in another case
involving the sufficiency of language translation for a Spanish‐
speaking defendant, that “[b]ecause the proper handling of
translation hinges on a variety of factors . . . the trial judge, who is in
direct contact with the defendant, must be given wide discretion”).
We conclude that, in light of what the District Court knew,
namely that Crandall had some difficulty hearing at times, the
District Court did not err by determining that the difficulty could be
more than adequately addressed in the normal course through
repetition and other instructions. The Judge made such
accommodations throughout the proceedings, such as instructing
witnesses to speak louder, having Crandall move closer to the
15 No. 12‐3313‐cr
bench, and instructing defense counsel to notify him if Crandall was
having difficulty. We hold that these accommodations were
commensurate with the degree of difficulty that was, or reasonably
should have been, clear or obvious to the District Judge.
Accordingly, in the circumstances presented, the Judge did
not err in failing to provide Crandall with any additional
accommodations.
CONCLUSION
To summarize, we hold that:
(1) The Sixth Amendment requires that reasonable
accommodations be made for hearing‐impaired criminal
defendants during judicial proceedings.
(2) The degree of accommodations provided must be
commensurate with the severity of the impairment.
(3) Where a criminal defendant does not notify the District Court
of the impairment, he is only entitled to accommodations
commensurate with the degree of difficulty that was, or
reasonably should have been, clear or obvious to the District
Judge.
(4) Here, Crandall did not notify the District Court of a
continuous hearing impairment, and his alleged impairment
was not, nor should have been, clear or obvious. Hence, there
was no error in the District Court’s failure to recognize the
purportedly continuous impairment.
(5) In light of what the District Court knew, or reasonably should
have known, about Crandall’s hearing difficulties—that
Crandall had some difficulty hearing at times—the
16 No. 12‐3313‐cr
accommodations it afforded throughout the proceedings, as
complaints arose, were commensurate with the apparent
severity of the impairment and, accordingly, were sufficient
under the Sixth Amendment.
For the reasons set out above, we AFFIRM the judgment of
the District Court, entered November 27, 2012.