17‐343‐cr
United States v. Sampson
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2017
(Argued: December 7, 2017 Decided: August 6, 2018)
No. 17‐343‐cr
––––––––––––––––––––––––––––––––––––
UNITED STATES OF AMERICA,
Appellee,
‐v.‐
JOHN SAMPSON,
Defendant‐Appellant.
––––––––––––––––––––––––––––––––––––
Before: CABRANES, LIVINGSTON, and CARNEY, Circuit Judges.
Defendant‐Appellant John Sampson (“Sampson”) appeals from a January
27, 2017 judgment of the United States District Court for the Eastern District of
New York (Irizarry, C.J.), following a jury verdict finding him guilty of obstruction
of justice and making false statements to federal agents. On appeal, Sampson
argues that: (1) the government prosecuted him improperly for a “witness‐
tampering” offense under 18 U.S.C. § 1503(a); (2) the district court committed
reversible error in its jury instruction concerning whether he “willfully caus[ed]”
an obstruction of justice under 18 U.S.C. § 2(b); (3) the evidence was insufficient to
support his conviction for making a false statement in violation of 18 U.S.C.
1
§ 1001(a)(2); (4) the district court committed reversible error (and violated
Sampson’s Confrontation Clause rights) by preventing Sampson from introducing
an FBI agent’s notes into evidence, and by sustaining the prosecution’s objection
to a question that Sampson’s counsel asked at trial; (5) the district court unfairly
prejudiced Sampson by allowing the prosecution to introduce evidence of bribes
that he allegedly received; and (6) the sentence imposed by the district court was
unreasonable. We have examined each of Sampson’s arguments and conclude that
none of them have merit. The district court’s judgment of conviction is therefore
AFFIRMED.
FOR DEFENDANT‐APPELLANT: NATHANIEL H. AKERMAN (Joshua
Colangelo‐Bryan, on the brief), Dorsey &
Whitney, New York, NY.
FOR APPELLEE: PAUL TUCHMANN, Assistant United States
Attorney (David C. James, Alexander A.
Solomon, and Marisa M. Seifan, Assistant
United States Attorneys, on the brief), for
Richard P. Donoghue, United States
Attorney for the Eastern District of New
York, Brooklyn, NY.
DEBRA ANN LIVINGSTON, Circuit Judge:
On July 24, 2015, following a jury trial in the United States District Court for
the Eastern District of New York (Irizarry, C.J.), Defendant‐Appellant John
Sampson (“Sampson”) was convicted of one count of obstruction of justice, in
violation of 18 U.S.C. § 1503(a), and two counts of making false statements to
federal agents, in violation of 18 U.S.C. § 1001(a)(2). The district court later
sentenced Sampson principally to five years of imprisonment. On appeal,
2
Sampson challenges the judgment on numerous grounds. We conclude that none
of Sampson’s arguments is meritorious. We therefore AFFIRM the district court’s
judgment of conviction.
BACKGROUND
I. Factual Background1
Sampson began serving in the New York State Senate in 1997, representing
the 19th Senate District in Brooklyn. Until his expulsion from the Senate in 2015,
Sampson was seen as a political “powerhouse.” See Alan Feuer, John Sampson, Once
a State Senate Powerhouse, Sentenced to Prison, N.Y. Times, Jan. 19, 2017, at A20. He
served as leader of the Democratic Conference of the Senate from June 2009 to
December 2012, and Minority Leader of the Senate from January 2011 to December
2012.
Sampson was also licensed to practice law in New York State. As described
in more detail in this case’s companion appeal, United States v. Sampson, No. 15‐
2869‐cr (2d Cir. 2018), Justices of the New York State Supreme Court periodically
appointed Sampson to serve as a referee in foreclosure actions for properties
1 Because Sampson is appealing a judgment of conviction entered after a jury trial,
unless otherwise noted, the factual background presented here is drawn from the
evidence presented at trial and is described in the light most favorable to the government.
See United States v. Silver, 864 F.3d 102, 106 n.4 (2d Cir. 2017).
3
located in Brooklyn. The government argued at trial that over time, Sampson
embezzled hundreds of thousands of dollars from various foreclosure escrow
accounts that he oversaw as a referee.
In July 2006, Sampson asked Edul Ahmad (“Ahmad”), a Queens
businessman, to lend him $188,500 so that he could replace funds he had
embezzled before the authorities could discover they were missing. Ahmad
agreed to lend Sampson the money. Sampson failed to repay Ahmad. After
realizing that Sampson would not repay the loan, Ahmad asked Sampson to use
his position in the New York State Senate to provide Ahmad with special favors.
Sampson subsequently intervened with New York State regulatory agencies
conducting reviews of Ahmad’s business, lobbied for Ahmad to receive
potentially lucrative brokerships from national financial institutions, and
introduced legislation that would have benefited Ahmad as the owner of a
minority‐owned business.
In July 2011, Federal Bureau of Investigation (“FBI”) agents arrested Ahmad
for mortgage fraud, and the United States Attorney’s Office for the Eastern District
of New York (“the USAO”) commenced its prosecution of Ahmad. After Ahmad
was released on bail, he met with Sampson “multiple times.” App’x at 109.
4
Sampson told Ahmad that Sampson “had a friend that he had gone to school with”
who worked in the USAO, “and that he would reach out to this individual and try
to get some information as to the strength of [the USAO’s] case,” including the
names of individuals who might testify against Ahmad should Ahmad choose to
go to trial. Id. at 110. The government argued to the jury that Sampson’s goal was
to prevent Ahmad from pleading guilty to the charges, cooperating with the
government, and disclosing Sampson’s crimes. Ahmad accepted Sampson’s offer
to help him acquire names of potential witnesses.
Sampson contacted Samuel Noel (“Noel”), who, at the time, served as a
supervisory paralegal at the USAO. Sampson provided Noel with the names of
four potential witnesses in Ahmad’s case: Leesa Shapiro, Glenn Hirsch, Roger
Khan (“Khan”), and Premaj Hansraj (“Hansraj”). Noel understood that Sampson
was asking him to conduct an improper search of the USAO’s non‐public database
and determine who was planning to testify at Ahmad’s trial. Noel knew that it was
a crime for him to provide Sampson with this non‐public information.
Nonetheless, after speaking with Sampson, Noel used his government
account to run the names of Ahmad, Sampson, and the relevant witnesses through
the Public Access to Electronic Records (“PACER”) database. Noel understood at
5
the time that he was forbidden from using PACER for such non‐work‐related
purposes. Next, Noel looked up the names of Ahmad, Sampson, and the relevant
witnesses in the Legal Information Office Network System (“LIONS”), a non‐
public USAO database with confidential information. 2 Noel found results for
Ahmad, Khan, and Hansraj, but not for the others. Noel later told Sampson that
he did not see his name or come across other relevant information in the LIONS
database.
Noel also contacted two nonsupervisory USAO paralegals, one working on
Ahmad’s case and the other working in the USAO’s public integrity section.
During a closed‐door meeting, Noel told the paralegal working on Ahmad’s case
to inform him of information regarding the case, including if she learned that
witnesses were speaking about Sampson. During another closed‐door meeting in
his office, Noel directed the paralegal working in the public integrity section to
inform him if she came across any of the named witnesses mentioning Sampson.
On November 22, 2011, Sampson assured Ahmad that Sampson was “on top of”
2 Noel testified that he looked up Sampson’s name “[t]o see if he might have been
a target, to see if he was being investigated.” App’x at 745.
6
Noel, and that Noel was “doing the best he can” to find out information on
Ahmad’s case. Id. at 914.
Ahmad also informed Sampson that the FBI had approached Qayaam
Farrouq (“Farrouq”), one of Ahmad’s co‐conspirators in the mortgage fraud.
Ahmad told Sampson that he was worried that Farrouq would cooperate with the
government. Ahmad therefore suggested that Sampson provide Farrouq with an
attorney who would betray attorney‐client confidentiality and provide them with
information about whether Farrouq would cooperate. Sampson arranged for an
attorney to represent Farrouq, instructing Ahmad not to have contact with the
attorney directly, but that Sampson himself would communicate with the attorney
about Farrouq.
Sampson followed a similar tack after the government arrested Nazir
Gurmohamed (“Gurmohamed”), one of Ahmad’s other co‐conspirators. Sampson
suggested that he and Ahmad obtain an attorney for Gurmohamed who would
breach privilege and inform them if Gurmohamed began cooperating with the
government. During the meeting with Ahmad at which this conversation took
place, Sampson talked to Farrouq’s attorney on the phone and solicited
information about Farrouq and Gurmohamed’s arraignments and bail hearings.
7
As for obtaining a lawyer for Gurmohamed, Sampson instructed Ahmad to pay
the attorney in cash so there would be no “money trail.” Id. at 923. Later, Sampson
sent Ahmad contact information for the attorney Ahmad was to retain for
Gurmohamed.
Sampson also attempted to hire a private investigator, Warren Flagg
(“Flagg”), a former FBI agent who worked with the USAO while in that role.
Sampson hoped that Flagg could exploit his ties with the USAO to extract
information regarding the case against Ahmad. During a meeting, Flagg told
Ahmad that it would be illegal for him to secure confidential information about
the USAO’s potential cooperating witnesses. See id. at 1010 (“[I]f I call up a buddy
of mine and say, oh, you know this case? First of all, that’s tampering.”).
Nevertheless, Flagg suggested that Ahmad compile a list of possible cooperating
witnesses for Flagg to investigate. Sampson repeatedly urged Ahmad to do so. At
the same time, Sampson stated that Ahmad did not need to involve his criminal
counsel in any of Flagg’s potential work.
Despite Sampson’s efforts, Ahmad began to cooperate with the government
in November 2011. Sampson and Ahmad met again in February 2012. In
preparation for the meeting, pursuant to instructions from law enforcement,
8
Ahmad copied a page from his check register that showed the $188,500 he had
transferred to Sampson. During the meeting, Ahmad showed Sampson the copy,
informed him that it was responsive to a government subpoena, and asked what
he should do. Sampson instructed Ahmad not to produce the check register and
to lie to the government about its—and the loan’s—existence. Sampson then took
the copy from Ahmad; he did not return it.
On July 27, 2012, two FBI agents—Ken Hosey (“Agent Hosey”) and Erin
Zacher (“Agent Zacher”)—interviewed Sampson and questioned him about the
check register page. Sampson claimed not to recall anything about the $188,500
payment that Ahmad had provided him. Agent Hosey then showed Sampson a
photocopy of Ahmad’s check register page. Sampson told Hosey that the
document “didn’t ring a bell” and that “he didn’t have a recollection from it.” Id.
at 780. He suggested, however, that he might recall if he checked his files or
received more information.
In the same interview, the agents questioned Sampson about his ownership
interest in a Brooklyn liquor store. Sampson had previously failed to disclose this
interest when submitting a liquor license application to the New York State Liquor
Authority. Responding to FBI questioning, however, Sampson admitted he did
9
have the ownership interest. He claimed that his four business partners in the store
awarded him the interest as payment for performing certain legal work, but
Sampson failed to identify what work he did. He also denied asking one of his
Senate staffers to help with a matter related to the store.
At the conclusion of the interview, Hosey informed Sampson that he
believed Sampson was lying and that it was a felony to lie to federal agents.
Sampson responded, “[n]ot everything I told you was false.” Trial Transcript
(“T.”) 2109.
II. Procedural History
On April 29, 2013, a grand jury in the United States District Court for the
Eastern District of New York returned an indictment against Sampson that
contained nine criminal counts. On March 17, 2015, a grand jury returned a fifth
superseding indictment, which contained eleven counts. 3 Counts 1 and 2
concerned Sampson’s alleged embezzlements from the escrow accounts that he
3 The grand jury later returned a sixth superseding indictment, under which
Sampson was tried. Sampson’s judgment of conviction, however, refers to the substantive
counts of the fifth superseding indictment. Sampson concedes that the two indictments
contain identical counts apart from the two embezzlement counts that, as noted below,
the district court dismissed pretrial. Sampson’s brief on appeal therefore cites exclusively
to the fifth superseding indictment, and for the sake of consistency, we will as well.
10
oversaw as a referee. 4 Count 3 charged Sampson with conspiracy to obstruct
justice, in violation of 18 U.S.C. § 1512(k), due to his alleged efforts—with Noel,
Ahmad, and others—to impede Ahmad’s mortgage fraud investigation. Count 4
charged Sampson with obstruction of justice, in violation of 18 U.S.C. § 1503(a), for
his individual role in the same conduct. Count 5 charged Sampson with witness
tampering, in violation of 18 U.S.C. §§ 1512(b)(2)(A)–(C) and 1512(b)(3), for
attempting to induce Ahmad not to provide the check register page to the federal
authorities. Count 6 charged Sampson with witness tampering, in violation of 18
U.S.C. § 1512(b)(3), for pressuring Ahmad to lie to the government about the
existence of the $188,500 loan. Count 7 charged Sampson with evidence tampering,
in violation of 18 U.S.C. § 1512(c)(1), for his attempt to hide the check register page
from the government. Count 8 charged Sampson with concealment of records, in
violation of 18 U.S.C. § 1519, regarding the same conduct. Finally, Counts 9, 10,
and 11 charged Sampson with making false statements to federal officers, in
violation of 18 U.S.C. § 1001(a)(2). Specifically, the indictment alleged that
Sampson falsely told Agents Hosey and Zacher that he did not recall seeing the
4 The district court later dismissed those counts as time‐barred. In this case’s
companion appeal, we vacated the district court’s decision and reinstated the two counts.
See United States v. Sampson, No. 15‐2869‐cr (2d Cir. 2018).
11
check register page prior to the FBI interview (Count 9), that he never requested
nonpublic information from Noel (Count 10), and that he did not direct a Senate
staffer to intervene with New York tax authorities on the liquor store’s behalf
(Count 11).
A jury trial commenced on June 22, 2015. On July 24, 2015, the jury found
Sampson guilty as to Counts 4, 9, and 11. In other words, the jury concluded that
Sampson personally obstructed justice in the mortgage fraud investigation and
made false statements to Agents Hosey and Zacher regarding his knowledge of
the check register page and his use of Senate staff to benefit the liquor store.
On September 14, 2015, Sampson moved for judgments of acquittal on
Counts 4 and 9 (but not Count 11) pursuant to Federal Rule of Criminal Procedure
29. See United States v. Sampson, No. 13‐cr‐269 (DLI), 2016 WL 756565, at *1
(E.D.N.Y. Feb. 26, 2016) (“Sampson 2016”). 5 Sampson argued that the § 1503(a)
obstruction conviction (i.e., Count 4) was invalid because it was based solely on
conduct that amounted to witness tampering. The district court held that Sampson
waived this argument by failing to raise it before trial and that, in any event,
The district court’s opinion refers to these counts as Counts 2, 7, and 9, which is
5
how they are referenced in the sixth superseding indictment.
12
Sampson’s argument failed on the merits. See id. at *9–13. Sampson also claimed
that the check register false statement conviction (i.e., Count 9) was invalid
because, inter alia, it was literally true that he had not seen the FBI’s photocopy of
the check register page prior to the interview. The district court rejected this
argument, noting that “[o]f course Special Agent Hosey was not asking if
Defendant literally had ever seen the actual photocopy then being displayed;
Special Agent Hosey was asking if Sampson had ever seen the image depicted
therein.” Id. at *17 (emphasis in original).
In addition, on July 5, 2016, Sampson moved for a new trial due to the
Supreme Court’s decision in McDonnell v. United States, 136 S. Ct. 2355 (2016). The
district court denied this request, concluding that McDonnell was inapplicable
because the government had not charged Sampson with bribery or corruption
offenses.
On January 18, 2017, the district court sentenced Sampson to five years of
imprisonment on each of the three counts, with the sentences to run concurrently,
followed by three years of supervised release. The district court entered judgment
13
on January 27, 2017, and Sampson timely appealed. Sampson is presently serving
his sentence.
DISCUSSION
I
Sampson first argues that the government’s theory of obstruction under 18
U.S.C. § 1503(a)—i.e., that Sampson sought confidential information in Ahmad’s
case with the corrupt intent of facilitating witness tampering—ran afoul of our
decisions in United States v. Hernandez, 730 F.2d 895 (2d Cir. 1984), and United States
v. Masterpol, 940 F.2d 760 (2d Cir. 1991). Accordingly, he contends, his conviction
on Count 4 must be vacated. The government counters that Sampson waived this
objection by not raising it before trial and, in any event, Sampson’s conduct was
properly punishable under § 1503(a).
Because Sampson’s argument raises questions of law, our review is de novo.
See United States v. Holcombe, 883 F.3d 12, 15 (2d Cir. 2018). We need not address
whether Sampson waived this argument, because even assuming arguendo that he
did not, we conclude—for the reasons outlined below—that § 1503(a) proscribed
his conduct. In doing so, we narrow the potential reach of some of our language
in Hernandez and Masterpol—cases whose reasoning “has been rejected by every
14
other federal court of appeals that has considered the issue,” United States v. Bruno,
383 F.3d 65, 87 (2d Cir. 2004).6
A. Overview of 18 U.S.C. § 1503(a) and 18 U.S.C. § 1512
Section 1503(a) of Title 18 criminalizes, inter alia, endeavoring to intimidate,
threaten, or injure court officers, commissioners, and jurors. It also contains a
residual or “omnibus” clause. See, e.g., United States v. Aguilar, 515 U.S. 593, 598
(1995) (describing § 1503(a)’s structure). This “omnibus” clause broadly prohibits,
inter alia, “corruptly . . . endeavor[ing] to influence, obstruct, or impede, the due
administration of justice.” 18 U.S.C. § 1503(a); see also United States v. Kumar, 617
F.3d 612, 620 (2d Cir. 2010) (“[T]he omnibus clause embraces the widest variety of
conduct that impedes the judicial process[.]” (internal quotation marks and
citation omitted)). The conduct that the omnibus clause proscribes consists of an
actus reus and a mens rea. The actus reus is “endeavor[ing] to influence, obstruct, or
impede, the due administration of justice.” 18 U.S.C. § 1503(a).7 The mens rea is
6 See, e.g., United States v. Davis, 854 F.3d 1276, 1289 (11th Cir. 2017); United States
v. LeMoure, 474 F.3d 37, 40–41 & n.2 (1st Cir. 2007); United States v. Ladum, 141 F.3d 1328,
1337–38 (9th Cir. 1998); United States v. Tackett, 113 F.3d 603, 606–11 (6th Cir. 1997); United
States v. Maloney, 71 F.3d 645, 659 (7th Cir. 1995); United States v. Kenny, 973 F.2d 339, 343
(4th Cir. 1992); United States v. Branch, 850 F.2d 1080, 1082 (5th Cir. 1988); United States v.
Risken, 788 F.2d 1361, 1369 (8th Cir. 1986).
7 In the context of § 1503(a), an “endeavor” is simply “act[ing] with the wrongful
intent or improper purpose to influence [a] judicial or grand jury proceeding,” and doing
15
acting “corruptly,” id.—that is, with “a specific intent to obstruct a federal judicial
or grand jury proceeding.” United States v. Schwarz, 283 F.3d 76, 109 (2d Cir. 2002).
Accordingly,
to convict for obstruction of justice under the omnibus clause of
section 1503, the government must establish (1) that there is a
pending judicial or grand jury proceeding constituting the
administration of justice, (2) that the defendant knew or had
notice of the proceeding, and (3) that the defendant acted with
the wrongful intent or improper purpose to influence the judicial
or grand jury proceeding, whether or not the defendant is
successful in doing so—that is, “that the defendant corruptly
intended to impede the administration of that judicial
proceeding.”
United States v. Quattrone, 441 F.3d 153, 170 (2d Cir. 2006) (quoting United States v.
Fassnacht, 332 F.3d 440, 447 (7th Cir. 2003)). The government must show, we have
said, that the defendant’s conduct “ha[d] the natural and probable effect of
interfering with a judicial or grand jury proceeding.” Id. at 171.
Before 1982, § 1503 also explicitly criminalized endeavoring to intimidate,
threaten, or injure witnesses. See Hernandez, 730 F.2d at 898–99. In 1982, however,
so in a manner that has the “natural and probable effect of” succeeding. United States v.
Quattrone, 441 F.3d 153, 170–171 (2d Cir. 2006); see also United States v. Russell, 255 U.S.
138, 143 (1921) (defining an “endeavor” under § 1503 as “any effort or essay to do or
accomplish the evil purpose that the section was enacted to prevent” (emphasis added)).
By using the term “endeavor” in § 1503(a), Congress intended to remove “the
technicalities associated with distinguishing between preparation for an attempt and the
attempt itself.” United States v. Buffalano, 727 F.2d 50, 53 (2d Cir. 1984).
16
Congress passed the Victim and Witness Protection Act, Pub. L. No. 97‐291, 96
Stat. 1248 (1982), which was designed to “strengthen existing legal protections for
victims and witnesses of federal crimes.” Hernandez, 730 F.2d at 898 (quoting S.
Rep. No. 532, 97th Cong., 2d Sess. 9). The Act eliminated all explicit references to
witnesses in § 1503 and created a new statute—18 U.S.C. § 1512—which broadly
criminalizes various forms of witness tampering. See id. Section 1512, as relevant
here, criminalizes “knowingly us[ing] intimidation, threaten[ing], or corruptly
persuad[ing]” a witness with intent to delay or prevent the witness’s testimony, or
“attempt[ing] to do so.” 18 U.S.C. § 1512(b) (emphasis added). The statute also
criminalizes “corruptly . . . obstruct[ing], influenc[ing], or imped[ing] any official
proceeding, or attempt[ing] to do so.” Id. § 1512(c)(2).
B. Hernandez and Masterpol
In Sampson’s case, the government’s theory of culpability under § 1503(a)
was as follows: Sampson committed the actus reus of “endeavor[ing] to influence,
obstruct, or impede, the due administration of justice” when he acted to acquire
confidential information about witnesses in Ahmad’s case. Sampson 2016, 2016 WL
756565, at *12. And because he did so with the intent to tamper (or, at least, with
the intent to help others tamper) with those witnesses, Sampson possessed the
17
relevant mens rea. See, e.g., Br. for Appellee 22 (“Sampson engaged in these acts of
obstruction with the goal that the nonpublic law enforcement information he
ultimately obtained would be used to tamper with witnesses . . . .”).8 Thus, the
government argued that Sampson undertook conduct with an intent to witness
tamper—that is, effectively, Sampson “endeavored” to witness tamper. 9 And
because witness tampering is a form of obstruction of justice, see, e.g., Aguilar, 515
U.S. at 615–16 (Scalia, J., concurring in part and dissenting in part), it would seem
that § 1503(a), by its plain text, proscribed Sampson’s conduct.
Standing in the way of this commonsense conclusion, Sampson insists, are
our decisions in Hernandez and Masterpol. Hernandez involved a defendant who
threatened a witness in an effort to coerce him into handing over documentary
evidence. Hernandez, 730 F.2d at 897. The government charged the defendant with
one count of “witness tampering” under § 1512, and one count of “obstruction of
justice” under § 1503(a). Id. The defendant conceded that § 1512 proscribed his
conduct, but argued that “threatening a witness in order to obtain documentary
8 The government did not allege that Sampson actually tampered with any witness
other than Ahmad. He was later acquitted of the witness tampering charge.
The government deliberately chose not to charge Sampson for “attempted
9
witness tampering” under § 1512 “in light of the remoteness of [Sampson’s] actus reus
from [actual] witness tampering.” Br. for Appellee at 23.
18
evidence[] no longer f[ell] within the proscriptions of § 1503.” Id. We agreed. Id. at
898–99. We based our holding on two pieces of evidence: (1) the fact that the Victim
and Witness Protection Act eliminated all explicit witness‐related language from
§ 1503, and (2) a lone statement by one of the Act’s sponsors that the Act was
designed to amend § 1503 so that “it w[ould] make no mention of, and provide no
protection to, supenaed [sic] witnesses.” Id. (emphasis removed) (quoting 128
Cong. Rec. S. 26810). Accordingly, we explained that “intimidation and
harassment of witnesses should []henceforth be prosecuted under § 1512,” and “no
longer . . . under § 1503.” Id. at 899.
We expanded on this reasoning in Masterpol. The defendant in Masterpol was
charged under § 1503 for approaching witnesses in his own case and successfully
urging them to recant their testimony. Masterpol, 940 F.2d at 761. Notably, the
defendant did so without resort to physical force or threats. See id. at 763. At the
time of our decision in Hernandez, § 1512 would not have covered his conduct.
The version of the statute in effect at that time prohibited only witness tampering
that involved “intimidation or physical force,” “threat[s],” or “engag[ing] in
misleading conduct.” See P.L. 97‐291, October 12, 1982, 96 Stat. 1248. Accordingly,
as the government in Masterpol noted, if § 1503 did not criminalize the defendant’s
19
conduct, there would have been a gap; the defendant could not be charged under
either § 1512 or § 1503. Masterpol, 940 F.2d at 763. We responded by noting that in
1988—“well before [the defendant’s] obstructive conduct in January 1990”—
Congress amended § 1512 to criminalize “corruptly persuad[ing]” a witness to
delay or prevent testimony. Id. We thought that this amendment severely
diminished the government’s argument that § 1503 should apply, and we thus
reversed the defendant’s § 1503 conviction. See id.
Sampson argues that Hernandez and Masterpol, properly applied, mandate
reversing his § 1503 conviction for endeavoring to witness tamper. We disagree.
As noted above, Hernandez and Masterpol involved intimidating and threatening a
witness, and corruptly persuading witnesses to recant their testimony. We decline
today to extend the reasoning of Hernandez and Masterpol to bar any other sort of
obstructive witness‐related conduct from being prosecuted under § 1503. See, e.g.,
Mar. Ins. Co. v. Emery Air Freight Corp., 983 F.2d 437, 440–41 (2d Cir. 1993) (Meskill,
C.J.) (concluding that a prior decision of this Court, though not overruled, should
be limited to its facts); S.A. Mineracao Da Trindade‐Samitri v. Utah Intʹl, Inc., 745 F.2d
190, 193 (2d Cir. 1984) (similar). To whatever extent that language in either
Hernandez or Masterpol might be read to stand for broader propositions about the
20
propriety of prosecuting witness‐related conduct under § 1503(a), we conclude
that those statements are not binding. See, e.g., Ming Shi Xue v. Bd. of Immigration
Appeals, 439 F.3d 111, 121 (2d Cir. 2006) (“An opinion simply cannot hold more
than the facts before it.” (internal quotation marks omitted) (quoting United States
v. Garcia, 413 F.3d 201, 232 n.2 (2d Cir. 2005) (Calabresi, J., concurring))). Thus,
because Sampson was charged and convicted under § 1503(a) for an inchoate
endeavor to witness tamper—rather than for intimidating and threatening a
witness or corruptly persuading a witness to recant her testimony—his § 1503(a)
conviction was proper.
Two considerations undergird our decision today. First, it is undisputed
that § 1503(a) proscribed endeavors to witness tamper before the Victim and
Witness Protection Act amended it. And as Hernandez itself recognized, the goal
of the Victim and Witness Protection Act was to “strengthen existing legal
protections for victims and witnesses of federal crimes.” Hernandez, 730 F.2d at 898
(emphasis added) (quoting S. Rep. No. 532, 97th Cong., 2d Sess. 9). That fact was
less relevant in Hernandez and Masterpol, because it was undisputed in both of
those cases that § 1512 proscribed the defendants’ conduct. See Masterpol, 940 F.2d
at 763; Hernandez, 730 F.2d at 897. But efforts to witness tamper that rise to the level
21
of an “endeavor” yet fall short of an “attempt” cannot be prosecuted under § 1512.
See 18 U.S.C. §§ 1503(a), 1512(b), 1512(c)(2); compare, e.g., United States v. Desposito,
704 F.3d 221, 231 (2d Cir. 2013) (concluding that an attempt must include
“something more than mere preparation” (quoting United States v. Farhane, 634
F.3d 127, 147 (2d Cir. 2011))), with Buffalano, 727 F.2d at 53 (“[A]n ‘endeavor’ under
§ 1503 does not require proof that would support a charge of attempt . . . .”).
Sampson’s broad reading of Hernandez and Masterpol, then, would mean that
neither § 1503 nor § 1512 currently covers mere “endeavors” to witness tamper.
We believe that such a conclusion is implausible. Congress could not have possibly
intended “in 1982 to reduce the protection afforded against soft witness tampering
at the very time that it was trying to expand protection of witnesses.” LeMoure, 474
F.3d at 41 (emphasis in original).10
Second, and perhaps more importantly, we are currently the only federal
court of appeals to suggest that § 1503(a)’s omnibus clause does not proscribe
10 Masterpol’s dicta suggesting that “to the extent a gap” exists between § 1503 and
§ 1512, “the proper remedy is not for the courts to distort the plain language of [the
statute] but for Congress to enact legislation to close the gap,” 940 F.2d at 763 (quoting
United States v. King, 762 F.2d 232, 238 (2d Cir. 1985)), does not foreclose this conclusion.
The Masterpol Court expressly acknowledged that its statement was informed in part by
its conclusion that no such gap appeared in the case before it. See id. And our
interpretation today requires no distortion of the text of § 1503(a)’s omnibus clause, but
rather applies that text by its plain terms.
22
endeavors to obstruct justice that involve potential witness tampering. See Bruno,
383 F.3d at 87. And, quite frankly, our sister circuits’ uniform rejection of our
position appears warranted. For one thing, Hernandez began its analysis of
§ 1503(a) by examining its pre‐1982 version (which included references to witness
tampering), and then supplemented that analysis by examining § 1512’s legislative
history. See Hernandez, 730 F.2d at 898–99. At no point, however, did Hernandez
examine the actual text of § 1503(a)’s omnibus clause, which the Victim and Witness
Protection Act did not change. See, e.g., Ross v. Blake, 136 S. Ct. 1850, 1856 (2016)
(“Statutory interpretation, as we always say, begins with the text . . . .”); Hui v.
Castaneda, 559 U.S. 799, 812 (2010) (“We are required . . . to read [a] statute
according to its text.”). The plain language of § 1503(a)’s omnibus clause clearly
continues to cover witness tampering—unquestionably a form of “influenc[ing],
obstruct[ing], or imped[ing] the due administration of justice.” See N.L.R.B. v. SW
Gen., Inc., 137 S. Ct. 929, 942 (2017) (“What Congress ultimately agrees on is the
text that it enacts, not the preferences expressed by certain legislators.”). Moreover,
Hernandez (and, by implication, Masterpol) appears simply to have disregarded the
Supreme Court’s “cardinal rule . . . that repeals by implication are not favored,”
Morton v. Mancari, 417 U.S. 535, 549 (1974) (quoting Posadas v. Nat’l City Bank, 296
23
U.S. 497, 503 (1936)), and that a court may not infer a statutory repeal “unless the
later statute ‘expressly contradict[s] the original act’ or unless such a construction
is absolutely necessary . . . in order that [the] words [of the later statute] shall have
any meaning at all,” Traynor v. Turnage, 485 U.S. 535, 548 (1988) (quoting
Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 (1976)). Neither of these
circumstances is present in the case of § 1503(a), as amply demonstrated by the
case law from all eight other circuits to have considered the issue.
These two considerations, taken together, lead us to conclude that Hernandez
and Masterpol should not be extended beyond the precise situations that our Court
confronted in those cases.11 Thus, Hernandez and Masterpol bar the government
from prosecuting an individual under § 1503(a) for intimidating and threatening
witnesses or corruptly persuading witnesses to recant their testimony. They do
not, however, bar the government from prosecuting an individual under § 1503(a)
for an inchoate endeavor to witness tamper. We therefore affirm Sampson’s
§ 1503(a) conviction.
Given this disposition, we leave to another day the question of whether our
11
decisions in Hernandez and Masterpol should be overruled by our en banc Court.
24
II
Sampson next argues that even assuming § 1503(a) properly applies, his
conviction on Count 4 still must be vacated because the district court failed to
instruct the jury properly. In addition to charging Sampson as a principal under
§ 1503(a), the government charged, in the alternative, that by encouraging Noel to
search through the USAO’s classified database for information on witnesses in
Ahmad’s case, Sampson “willfully caused” Noel to violate § 1503(a), thereby
rendering Sampson liable as an aider and abettor.12 Sampson contends that the
district court failed to instruct the jury properly as to the mens rea necessary for
him to have aided and abetted a violation of § 1503(a). The parties dispute whether
we should review this alleged error de novo or for “plain error.” We need not
decide the point, however, because even assuming de novo review applies, we
conclude that vacatur is not warranted.
Under our de novo review standard, “[t]o secure reversal based on a flawed
jury instruction, a defendant must demonstrate both error and ensuing prejudice.”
United States v. Quinones, 511 F.3d 289, 313–14 (2d Cir. 2007). To demonstrate error,
12 Pursuant to 18 U.S.C. § 2(b), “[w]hoever willfully causes an act to be done which
if directly performed by him or another would be an offense against the United States, is
punishable as a principal.”
25
the defendant must show that, “as a whole,” the charge “either failed to inform
the jury adequately of the law or misled the jury about the correct legal rule.”
United States v. McIntosh, 753 F.3d 388, 392 (2d Cir. 2014) (per curiam) (quoting
United States v. White, 552 F.3d 240, 246 (2d Cir. 2009)). “An erroneous instruction,
unless harmless, requires a new trial.” Quattrone, 441 F.3d at 177 (quoting Anderson
v. Branen, 17 F.3d 552, 556 (2d Cir. 1994)).
Here, the district court’s aiding and abetting instruction reads as follows:
In addition to charging the defendant as a principal, the
government has charged the defendant under [an] alternate theory
that even if the defendant did not commit the crime charged in
Count [Four], the defendant willfully caused another person to
physically commit the crime. Thus, you may find that the
defendant acted as an aider and abettor if you find that the
government has proven beyond a reasonable doubt that he
knowingly, willfully and corruptly caused another person to
obstruct justice, as I just defined it. . . .
What does the term “willfully caused” mean? It does not mean that
the defendant himself need have physically committed the crime,
or supervised, or participated in the actual criminal conduct
charged in the indictment. The meaning of the term “willfully
caused” can be found in the answers to the following questions:
[1] Did the defendant in or about and between July 2011 and July
2012 know that there was a federal proceeding pending before a
federal judge or a court; that is the federal prosecution of Edul
Ahmad, in the United States District Court of the Eastern District
of New York?
26
[2] Did the defendant intentionally cause another person to obstruct,
impede, or influence or corruptly endeavor to obstruct, impede or
influence the federal prosecution of Edul Ahmad by obtaining
nonpublic information contained in the governmentʹs files or
computer databases?
If the jury is unanimously persuaded beyond a reasonable doubt
that the answer to both of these questions is yes, then the defendant
is an aider and abettor and is guilty of Count [Four], just as if he
had actually committed [the underlying crime].
Supp. App’x at 26–28 (emphasis added).
Under our case law, § 2(b) aiding and abetting offenses consist of both an
actus reus and a mens rea. The actus reus is that the defendant caused another person
to commit the requisite act. United States v. Whab, 355 F.3d 155, 161 n.3 (2d Cir.
2004) (citing United States v. Gabriel, 125 F.3d 89, 101 (2d Cir. 1997)). The mens rea is
that the defendant acted “with the mental state necessary” to commit the crime he
aided and abetted. Id. (emphasis removed) (quoting Gabriel, 125 F.3d at 101). A
defendant is thus liable for aiding and abetting another person’s violation of
§ 1503(a) if the defendant: (1) caused that person to “corruptly . . . endeavor[] to
influence, obstruct, or impede, the due administration of justice,” § 1503(a) (i.e.,
the actus reus); and (2) did so with “corrupt” intent—that is, with a “specific intent
to obstruct a federal judicial or grand jury proceeding,” Schwarz, 283 F.3d at 109
(i.e., the mens rea). Here, Sampson argues that the district court failed to instruct
27
the jury properly as to the requisite mens rea—that he “corruptly” caused Noel’s
offense. For the following reasons, we disagree.
Sampson points to the district court’s instruction that Sampson would be
liable under § 2(b) if the following two facts were true: (1) Sampson knew about
Ahmad’s pending federal prosecution, and (2) Sampson “intentionally cause[d]
[Noel] to . . . obstruct, impede, or influence or corruptly endeavor to obstruct,
impede, or influence” that prosecution. Supp. App’x at 27. The judge had also
explained in an earlier instruction that “[b]efore [the jury] can find that the
defendant acted intentionally, [it] must be satisfied beyond a reasonable doubt that
the defendant acted deliberately and purposefully.” T. 2465.
Sampson correctly notes that in this portion of the instruction, the district
court did not explicitly affirm that Sampson needed to have acted “corruptly,” i.e.,
with “a specific intent to obstruct a federal judicial or grand jury proceeding,”
Schwarz, 283 F.3d at 109. Reading the jury instruction “as a whole,” however, as
we must, see McIntosh, 753 F.3d at 392, we believe that it sufficiently conveys the
point. As an initial matter, the aiding and abetting instruction begins with the
affirmation that the jury may find Sampson guilty if he “knowingly, willfully and
corruptly caused another person to obstruct justice,” Supp. App’x at 27 (emphasis
28
added). See United States v. Mitchell, 328 F.3d 77, 82 (2d Cir. 2003) (“We review a
jury charge in its entirety and not on the basis of excerpts taken out of context.”
(quoting United States v. Zvi, 168 F.3d 49, 58 (2d Cir. 1998))). The judge had
elsewhere defined “corruptly” to mean acting “with an improper purpose” and
“knowingly and dishonestly, and with the intent to obstruct, impede or influence
the due administration of justice.” Gov’t App’x at 200–01.
Moreover, even as to the portion of the instruction on which Sampson
focuses his attention, the district court charged that Sampson needed to have
“intentionally cause[d]” Noel to endeavor to obstruct justice. Supp. App’x at 27
(emphasis added). As noted above, the district court had previously told the jury
that a person acts “intentionally” when he acts “deliberately and purposefully.” T.
2465. Thus, the district court effectively told the jury that Sampson must have
deliberately and purposefully “cause[d] [Noel] to . . . obstruct, impede, or influence
or corruptly endeavor to obstruct, impede, or influence” Ahmed’s prosecution.
Supp. App’x at 27. This instruction is sufficiently near to the precise words
preferred by Sampson—i.e., that Sampson needed to have acted with “a specific
intent to obstruct” Ahmed’s prosecution—that we are unable to discern how the
jury could have been misled. That is especially so when this language is properly
29
placed in the context of the instruction’s earlier admonition that Sampson may be
liable under an aiding and abetting theory if the government proved “that he
knowingly, willfully, and corruptly caused another person to obstruct justice.” Id.
(emphasis added). In short, Sampson has not shown a basis for setting aside his
conviction on Count 4. We reject his argument to the contrary.
III
Sampson next challenges his conviction on Count 9 for providing a false
statement to federal officials in violation of 18 U.S.C. § 1001(a)(2) when he told
Agents Hosey and Zacher that he “did not recall seeing [Ahmad’s] Check Register
Page previously.”13 App’x at 83. Agent Hosey, who showed Sampson the check
register page photocopy, testified to the following exchange with Sampson:
Q: [W]hat was the defendant’s response when you asked him if he
had seen the check register page before?
A: When I asked him if he had seen it before, he said he had not.
13 18 U.S.C. § 1001(a)(2) criminalizes, “in any matter within the jurisdiction of the
executive, legislative, or judicial branch of the Government of the United States,
knowingly and willfully . . . mak[ing] any materially false, fictitious, or fraudulent
statement or representation.” To secure a conviction under this statute, the government
must prove beyond a reasonable doubt that the defendant “(1) knowingly and willfully,
(2) made a materially false, fictitious, or fraudulent statement, (3) in relation to a matter
within the jurisdiction of a department or agency of the United States, (4) with knowledge
that it was false or fictitious or fraudulent.” United States v. Litvak, 808 F.3d 160, 170 (2d
Cir. 2015) (emphasis removed) (quoting United States v. Coplan, 703 F.3d 46, 78 (2d Cir.
2012)).
30
Q: Did [Sampson] appear to you to have any problem
understanding your question regarding whether he’d seen this
check register page before?
A: No. In fact, he said – his quotes were it didn’t ring a bell, and he
didn’t have a recollection from it.
Q: Did he ask for any clarification regarding the question you asked
about the check register page?
A: He said if he could check his files or there was more information,
he may be able to recall.
Id. at 780. Sampson makes three arguments as to why the evidence was insufficient
to show that his statement concerning the check register page violated § 1001(a)(2).
We reject all three.
Sampson first argues that his statement to Agent Hosey was literally correct,
and therefore cannot be the basis for a § 1001(a)(2) conviction. Specifically,
Sampson contends that Agent Hosey asked him if he recognized the FBI’s
photocopy of the check register page, which Sampson had indeed never seen.
Sampson therefore argues that his response to Agent Hosey, although misleading,
was literally true. But even assuming arguendo that a literally truthful statement
cannot be the basis for a § 1001 charge,14 Sampson’s argument is without merit.
14 We have suggested as much in dicta but have not squarely decided it in a
precedential opinion. See United States v. Mandanici, 729 F.2d 914, 921 (2d Cir. 1984) (citing
Bronston v. United States, 409 U.S. 352, 359–62 (1973)); but cf. United States v. Harrod, 981
F.2d 1171, 1175 (10th Cir. 1992) (“Bronston was decided under the federal perjury statute,
18 U.S.C. § 1621, which implicates significantly different policy concerns than does a
prosecution under 18 U.S.C. § 1001.”).
31
At the start, Agent Hosey did not testify as to the exact phrasing of his
question, so the record is not clear whether Agent Hosey in fact asked, “Have you
seen this document before?” But even assuming arguendo that he did, there was
nothing “true”—literally or otherwise—about Sampson’s response. Sampson did
not simply answer Agent Hosey’s question with a “no.” According to Agent
Hosey, “his quotes were it didn’t ring a bell, and he didn’t have a recollection from it.”
Id. at 780 (emphasis added). In other words, Sampson did not merely tell Agent
Hosey that he had never seen the precise document being presented to him.
Sampson insisted that the document did not look familiar to him, and that it did
not resemble any document that he had previously seen. See United States v.
Schafrick, 871 F.2d 300, 303 (2d Cir. 1989) (noting that a responsive statement “must
be judged according to common sense standards”). Moreover, Sampson claimed
that “if he could check his files or there was more information, he may be able to
recall.” App’x at 780. In context, here, too, Sampson was asserting that he could
not recall seeing any document similar to the photocopy that Agent Hosey was
showing him. Sampson could not have possibly meant that he might somehow
find, in his own files, the very same photocopy of the check register page. See
Schafrick, 871 F.2d at 304 (“If, in the context in which the statements were made,
32
they were materially untrue, then [a violation] is established. This is so even if the
statements could be literally true in isolation . . . .”).
The jury thus had more than an ample basis on which to conclude that
Sampson’s response to Agent Hosey’s question was false. See United States v.
Garavito‐Garcia, 827 F.3d 242, 248 (2d Cir. 2016) (noting that a defendant
challenging the sufficiency of the evidence “bears a heavy burden,” and that a
conviction will be upheld “if any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt” (quoting United States
v. Allen, 788 F.3d 61, 66 (2d Cir. 2015))). Ahmad testified that he had previously
shown Sampson a copy of the check register page, telling him that it was
responsive to a government subpoena and that Ahmad needed his advice.
According to Ahmad, Sampson instructed Ahmad to lie to the government about
the document’s existence. Sampson then took the copy from Ahmad and did not
return it. Given this testimony, and viewing the evidence in the light most
favorable to the government, a reasonable jury had sufficient basis to conclude
beyond a reasonable doubt that Sampson knew at the time of his interview with
Agent Hosey that he had previously seen a document resembling the one that
33
Agent Hosey showed him, and that he falsely claimed that he did not remember
having seen such a document.
Sampson next contends that the evidence was insufficient to show that he
intended to deceive Agent Hosey and his colleague, Agent Zacher. The district
court instructed the jury that a statement or representation is “false or fictitious”
under § 1001(a)(2) “if it was untrue when made, and known at the time to be
untrue, by the person making it or causing it to be made.” T. 2499. It further
instructed that a statement or representation is “fraudulent” under § 1001(a)(2) “if
it was untrue when made and was made, or caused to be made, with the intent to
deceive the government agency to which it was submitted.” Id. Sampson does not
challenge these instructions. Accordingly, to convict him of this charge, the jury
needed only to conclude that Sampson knew that his statement to the agents
regarding the check register page—namely, that he did not remember having seen
such a document—was false when he made it. The evidence was sufficient to
support such a conclusion: the jury was entitled to find that Sampson was aware
that his statement was false, and that he did in fact remember having seen the
check register document. And even assuming arguendo that the government had
to prove an “intent to deceive” to secure a conviction under § 1001(a)(2), we again
34
disagree that the evidence against Sampson was insufficient. As noted above,
Ahmad testified that Sampson told him to lie about the check register page, and
Sampson took the copy without returning it, presumably to prevent it from being
turned over to the authorities. This evidence is more than adequate to support the
conclusion that when Sampson told the agents that the check register page
photocopy “didn’t ring a bell,” he intended to deceive them.
Finally, Sampson maintains that Agent Hosey’s question was
“fundamentally ambiguous,” see, e.g., United States v. Lighte, 782 F.2d 367, 375 (2d
Cir. 1986), and therefore cannot serve as a basis for a § 1001(a)(2) conviction. This
argument, too, is without merit. 15 The evidence was more than sufficient for a
reasonable jury to conclude that Agent Hosey’s question was not fundamentally
ambiguous—and thus that Sampson, understanding the question, lied. As we
insisted in Lighte, “[i]f the response given was false as the defendant understood
the question, his conviction is not invalidated by the fact that his answer to the
question might generate a number of different interpretations.” Id. (quoting United
States v. Williams, 552 F.2d 226, 229 (8th Cir. 1977)). Taken together, Sampson’s
15 We will assume arguendo, and without deciding, that the standards applicable
to perjury under 18 U.S.C. § 1623, as discussed in Lighte, apply equally to Sampson’s
offense under § 1001(a)(2).
35
response to Agent Hosey’s question and his earlier dealings with Ahmad
involving the check register page provided sufficient evidence for a reasonable
jury to conclude beyond a reasonable doubt that Sampson interpreted the question
as Agent Hosey intended and that Sampson knowingly made a false statement in
reply. Accordingly, Sampson’s challenge to his conviction on Count 9 fails.
IV
Sampson next challenges his conviction on Count 11, contending that the
district court erred in refusing to admit certain evidence, and in refusing to allow
Sampson’s attorney to ask a question of Agent Hosey during cross‐examination.
Count 11 charged Sampson with violating § 1001(a)(2) by telling Agents Hosey
and Zacher that he never asked his Senate staffer to help with the liquor store’s tax
issues. At trial, the government elicited testimony from Agent Hosey as to how
Sampson responded when questioned about whether he “had asked the Senate
staff[er] to assist” the business partner “regarding the liquor store.” App’x at 782.
Agent Hosey responded that Sampson “stated he had not and said that he would
not put pressure on his staff to make that kind of inquiry.” Id.
During cross‐examination, Sampson sought to introduce notes taken by
Agent Zacher during the interview. Sampson offered the notes for two purposes:
36
(1) to demonstrate that Sampson’s statement that “he had not” asked the Senate
staffer for assistance concerning the liquor store did not appear in the notes, which
cast doubt on whether Sampson made this statement, and (2) to show that the
structure of Agent Hosey’s interview may have confused Sampson, and perhaps
caused him to provide a false statement unintentionally. The government objected,
asserting that the notes were hearsay. The judge sustained the government’s
objection. Sampson argues on appeal that the district court erred in refusing to
admit the notes.
In addition, and also on cross‐examination of Agent Hosey, Sampson’s
attorney attempted to ask him, “Isn’t it a fact that John Sampson did not deny that
he had asked his staff to assist?” Id. at 797. The government objected, and the judge
sustained the objection. Sampson’s attorney did not rephrase the question, but
simply moved onto another topic. Sampson argues that the district court erred in
refusing to allow his attorney to ask this question, and that the district court’s
evidentiary rulings also violated his Confrontation Clause rights.
“We review evidentiary rulings, including a trial court’s decision to limit
the scope of cross‐examination, for abuse of discretion.” United States v. White, 692
F.3d 235, 244 (2d Cir. 2012). This is a “deferential” standard. Gallego v. Northland
37
Grp. Inc., 814 F.3d 123, 129 (2d Cir. 2016). We may find abuse of discretion only if:
(1) the decision “cannot be located within the range of permissible decisions,” (2)
the decision rests on a “clearly erroneous factual finding,” or (3) the decision “rests
on an error of law.” Id. (quoting Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir.
2010)). Furthermore, “[a] district court is accorded broad discretion in controlling
the scope and extent of cross‐examination,” and “may impose reasonable limits on
cross‐examination to protect against, e.g., harassment, prejudice, confusion, and
waste.” United States v. Ulbricht, 858 F.3d 71, 118 (2d Cir. 2017) (quoting United
States v. James, 712 F.3d 79, 103 (2d Cir. 2013)). Thus, although the Sixth
Amendment’s Confrontation Clause gives “a defendant the right not only to cross‐
examination, but to effective cross‐examination,” “‘[i]t does not follow . . . that the
Confrontation Clause prevents a trial judge from imposing any limits’ on defense
counsel’s cross‐examination of government witnesses.” Id. (quoting James, 712 F.3d
at 103).
We conclude that the district court did not abuse its discretion—or violate
the Confrontation Clause—in either of its evidentiary rulings. First, Agent
Zacher’s notes were hearsay not shown to fall within any exception, and were
therefore inadmissible under Federal Rule of Evidence 802. Sampson offered
38
Agent Zacher’s notes to prove the truth of their contents—i.e., he was offering
them as an accurate reflection of what occurred during his interview with the FBI.
This was improper. The district court explicitly allowed Sampson to raise the
relevant information by cross‐examining Agent Hosey without admitting the
notes. See App’x at 799 (“You can ask [Agent Hosey about the structure of the
interview] in a completely different way that doesn’t violate my ruling [that the
notes are inadmissible]. [‘]Did you ask him questions about various topics?[’]
[‘]Did you return to various topics after asking other questions?[’] [‘]Yes or no?[’]
That’s it, and you’ve got your point, and move on.”).16 Moreover, Sampson could
have called and examined Agent Zacher herself, if Sampson had so wished. Agent
Zacher’s notes, however, were inadmissible hearsay. The district court did not
abuse its discretion in refusing to allow Sampson to introduce them.17
16 Sampson contends that the district court failed to provide him with this
opportunity in practice, but the record shows that Agent Hosey agreed during cross‐
examination that the interview “went from one area of discussion . . . to another area and
returned back to previous areas of discussion,” and that the discussions of the liquor store
and tax matters were separated by other topics. See App’x at 800–01.
17 We similarly conclude that the district court did not violate Sampson’s
Confrontation Clause rights by refusing to admit Agent Zacher’s notes; as noted above,
Sampson was perfectly free to call Agent Zacher to the stand and question her directly.
See, e.g., Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (“[T]he Confrontation Clause
guarantees an opportunity for effective cross‐examination, not cross‐examination that is
effective in whatever way, and to whatever extent, the defense might wish.” (emphasis
in original)).
39
Second, the district court did not violate Sampson’s Confrontation Clause
rights by sustaining the government’s objection to Sampson’s question. As noted
above, a district court can, consistent with the Confrontation Clause, impose
reasonable limits on cross‐examination to prevent “harassment, prejudice,
confusion, and waste.” Ulbricht, 858 F.3d at 118 (quoting James, 712 F.3d at 103).
Here, the trial transcript provides ample basis for the district court’s apparent view
that, in asking Agent Hosey about Sampson’s denial, Sampson’s attorney was
“trying . . . to work an end run around [the district court’s] rulings” by referring
to evidence that the district court had already deemed inadmissible hearsay (that
is, Agent Zacher’s notes). T. 2182. This ruling did not exceed the bounds of the
“broad discretion” afforded to district courts in limiting the “scope and extent” of
cross‐examination. Ulbricht, 858 F.3d at 118 (quoting James, 712 F.3d at 103). The
district court did not forbid Sampson’s attorney from continuing with this line of
questioning per se, and Sampson’s attorney did not attempt to rephrase the
question, but instead moved on. Under these circumstances, we do not believe the
district court violated Sampson’s Confrontation Clause rights in sustaining the
government’s objection to a single question.
40
V
Next, Sampson argues that it was unfairly prejudicial for the district court
to admit evidence that Sampson had allegedly engaged in bribery. The
government sought a pretrial ruling that it could introduce evidence that Sampson
had engaged in political favors for Ahmad once Sampson made clear that he
would not repay the money he had borrowed. The district court allowed the
government to present this evidence at trial for (at least) two different purposes.
See United States v. Sampson, No. 13‐CR‐269 S‐5 DLI, 2015 WL 2066073, at *6
(E.D.N.Y. May 4, 2015) (“Sampson 2015”). The first purpose was to demonstrate
Sampson’s motive for endeavoring to obstruct Ahmad’s prosecution—that is, to
prevent Ahmad from cooperating with the government and potentially giving the
government incriminating information. Id. The second purpose was to establish,
for Counts 5 and 6, that Sampson “hinder[ed], delay[ed], or prevent[ed] the
communication to a law enforcement officer . . . information relating to the
commission or possible commission of a [f]ederal offense” under 18 U.S.C.
§ 1512(b)(3). Id. The district court balanced the evidence’s probative value against
its danger of unfair prejudice, pursuant to Federal Rule of Evidence 403, and
determined that the evidence was “more probative than prejudicial.” Id. at *7.
41
Upon Sampson’s request, the district court also cautioned the jury repeatedly that
Sampson was not on trial for bribery, and that this evidence should not be
considered for purposes other than those outlined above.
On appeal, Sampson challenges the admission of the evidence directly to
prove Counts 5 and 6, which involved Sampson’s alleged efforts to prevent law
enforcement agents from learning of information relating to the commission of a
“federal offense.” Under the government’s theory at trial, the relevant “federal
offense” under § 1512(b)(3) was Sampson’s alleged violation of the federal bribery
statute, 18 U.S.C. § 201(b)(2)(A). That provision forbids public officials from, inter
alia, “corruptly . . . receiv[ing] . . . anything of value”—such as relief from a
$188,500 loan—“in return for being influenced in the performance of any official
act.” After Sampson’s trial, the Supreme Court decided McDonnell v. United States,
136 S. Ct. 2355 (2016), which narrowed the scope of the term “official act” in this
statute, see id. at 2371–72. As a result, Sampson argues, § 201(b)(2)(A) no longer
reaches his conduct with respect to Ahmad and the $188,500 loan, so that this
conduct is not currently a “federal offense” under § 1512(b)(3). Because the jury
ultimately acquitted Sampson on the charges that he violated § 1512(b)(3), this
42
issue is largely moot. Nonetheless, Sampson now argues that McDonnell makes
clear that the evidence of his alleged bribery was unfairly prejudicial at trial.
We disagree. “Under Rule 403, so long as the district court has
conscientiously balanced the proffered evidence’s probative value with the risk for
prejudice, its conclusion will be disturbed only if it is arbitrary or irrational.”
United States v. Awadallah, 436 F.3d 125, 131 (2d Cir. 2006). Here, the evidence of
Sampson’s purported bribery was highly probative—and not merely for the
purposes of demonstrating that he violated § 1512(b)(3). The prosecution’s theory
was that Sampson thought that he was committing a federal offense—a belief that
a person in his position might well have entertained, given our Circuit’s pre‐
McDonnell precedent. See Silver, 864 F.3d at 118–19 & n.88. The evidence thus
tended to establish that Sampson acted as he did to prevent Ahmad from
cooperating with law enforcement—i.e., that the alleged bribery motivated him to
endeavor to obstruct justice. See Sampson 2015, 2015 WL 2066073, at *6 (“[T]he
bribery evidence completes the story of the crime on trial and explains
[Sampson’s] actions with regard to the federal investigation. It also provides a
motive for the crime [and] tends to prove intent . . . .”).
43
Of course, the district court needed to weigh the probative value of this
evidence against the danger that it would inflame the jury, or that the jury would
be inclined to “declar[e] guilt on a ground different from . . . the offense charged,”
Old Chief v. United States, 519 U.S. 172, 180 (1997). The district court did so,
however, and determined that the “clear probative value [of the evidence]
outweigh[ed] any prejudicial effect on [Sampson],” and that “limiting instructions
[would] limit any potential harm to [him].” Sampson 2015, 2015 WL 2066073, at *7.
We believe that this decision was neither “arbitrary” nor “irrational,” Awadallah,
436 F.3d at 131, and we therefore reject Sampson’s argument that his conviction
should be vacated on this basis.
VI
Finally, Sampson challenges the reasonableness of his sentence. As noted
above, the district court sentenced Sampson to 60 months of imprisonment on
Counts 4, 9, and 11, with each sentence to be served concurrently. “We review
sentences ‘under a deferential abuse‐of‐discretion standard.’” United States v.
Young, 811 F.3d 592, 598 (2d Cir. 2016) (quoting Gall v. United States, 552 U.S. 38, 41
(2007)). We examine sentences for both “procedural” and “substantive”
reasonableness. United States v. Delacruz, 862 F.3d 163, 178 (2d Cir. 2017). “A
44
sentence is procedurally unreasonable if the district court fails to calculate (or
improperly calculates) the Sentencing Guidelines range, treats the Sentencing
Guidelines as mandatory, fails to consider the § 3553(a) factors, selects a sentence
based on clearly erroneous facts, or fails adequately to explain the chosen
sentence.” Ulbricht, 858 F.3d at 124 (quoting United States v. Jesurum, 819 F.3d 667,
670 (2d Cir. 2016)). And a sentence is “substantively unreasonable” if the sentence
“cannot be located within the range of permissible decisions . . . tak[ing] into
account the totality of the circumstances, giving due deference to the sentencing
judge’s exercise of discretion, and bearing in mind the institutional advantages of
district courts.” Young, 811 F.3d at 598–99 (first quoting United States v. Tutty, 612
F.3d 128, 131 (2d Cir. 2010); then quoting United States v. Chu, 714 F.3d 742, 746 (2d
Cir. 2013)).
Sampson challenges his sentence on four grounds. First, Sampson argues
that the district court improperly imposed an additional 16‐level enhancement to
his offense level per U.S.S.G. §§ 2X3.1 and 2B1.1(b). Second, he claims that the
district court erred in imposing an “abuse of public trust” enhancement under
U.S.S.G. § 3B1.3. Third, he insists that the district court failed to provide an
adequate justification for varying upward from the Guidelines sentencing range
45
of 37 to 46 months. Finally, he contends that his sentence creates “unwarranted
disparities.” Br. for Def.‐Appellant at 61. We reject all four of Sampson’s
arguments.
A. The 16‐Level Enhancement
Section 2J1.2(c) of the Sentencing Guidelines instructs that if an individual
commits an offense that involves obstructing a criminal investigation or
prosecution, the sentencing court should apply § 2X3.1, the Guideline for
“accessory after the fact.” U.S.S.G. § 2J1.2(c) (2016). Pursuant to § 2X3.1(a)(1),
except in circumstances not applicable here, an individual’s base offense level
should be six levels lower than the offense level for the underlying offense.
Application Note 1 to § 2X3.1 explains that the sentencing court should “[a]pply
the base offense level [for the underlying offense] plus any applicable special
offense characteristics that were known, or reasonably should have been known,
by the defendant.”
Because Sampson was convicted of endeavoring to obstruct Ahmad’s
criminal prosecution for mortgage fraud, the district court referred to § 2B1.1—the
Guideline for “fraud and deceit”—to calculate what the offense level might have
been for Ahmad’s underlying mortgage fraud. Section 2B1.1(b)(1) imposes a
“special offense characteristic” enhancement for fraud, depending on the amount
46
of the loss, see Application Note 3(A). Under § 2B1.1(b)(1)(I), if the intended or
actual loss caused by the fraud was for more than $1.5 million, the sentencing court
should increase the defendant’s sentence by 16 levels. Read in conjunction with
Application Note 1 to § 2X3.1, then, the district court should have imposed this 16‐
level sentence enhancement only if Sampson “kn[ew], or reasonably should have
. . . known” that Ahmad had committed fraud, and that this fraud was for a sum
greater than $1.5 million. At sentencing, the district court concluded, “based on
the evidence that was adduced at trial and the inferences that could be drawn from
it,” that Sampson either knew or should have known that Ahmad was engaging
in a fraud of this scale—to wit, approximately $3 million. App’x at 1114–15.
Sampson argues that “[t]here [was] no factual basis” for the district court
“to conclude that Sampson knew or should have known Ahmad committed fraud,
let alone a fraud” over the requisite $1.5 million threshold. Br. for Def.‐Appellant
51. Because Sampson is challenging the district court’s factual findings on this
issue, we may vacate only if the district court committed clear error. See Ulbricht,
858 F.3d at 124. “To hold that a factual finding is ‘clearly erroneous,’ we must be
left with the definite and firm conviction that a mistake has been committed.” Id.
(internal quotation marks omitted). “Where there are two permissible views of the
47
evidence, the [sentencing judge’s] choice between them cannot be clearly
erroneous.” Id. (internal quotation marks omitted).
Here, there was no “clear error” in the district court’s determination that
Sampson knew (or reasonably should have known) about Ahmad’s mortgage
fraud, as well as its value. First and foremost, the evidence suggests that Sampson
was aware that New York State regulators were investigating Ahmad’s business,
and he knew that Ahmad had received inquiries from these regulators concerning
forged signatures on some of Ahmad’s documents. Sampson even advised Ahmad
to submit an affidavit denying that Ahmad knew about the forged signatures, and
told him that he “should let Prem [Ahmad’s business partner] take the blame on
this,” since “Prem didn’t have anything to lose.” App’x at 197. Furthermore,
during a recorded conversation, Sampson strongly implied that he understood
that Ahmad was committing fraud, and told Ahmad that he needed to use
different language when conversing with him in the future so that Sampson would
have plausible deniability. See Gov’t App’x at 76–77 (“[AHMAD:] ‘[F]or example,
Nazir, he bought houses for me. Steve bought houses for me.’ . . . [SAMPSON:]
‘He didn’t buy houses, no, no, no, Ed, he did not buy houses for you. You and
Nazir, you’re an investor [sic]. Nobody bought houses for you. You got to get that
48
mindset out. Nobody bought houses for you.”). In addition, during his recorded
conversation with Flagg, Sampson expressed familiarity with the government’s
publicly filed indictment in Ahmad’s case, which alleged that Ahmad’s fraud was
worth over $50 million. Given the evidence that Sampson knew of Ahmad’s
wealth, and that he knew Ahmad was engaging in fraud to augment this wealth,
we do not believe that it was “clear error” for the district court to conclude that, at
the very least, Sampson “should have known” that Ahmad was defrauding
individuals in an amount greater than $1.5 million.
B. The Abuse of Public Trust Enhancement
Section § 3B1.3 of the Guidelines instructs that if the defendant “abused a
position of public or private trust, or used a special skill, in a manner that
significantly facilitated the commission or concealment of the offense,” the
sentencing court should increase the defendant’s sentence by two levels. The
district court held that this enhancement was warranted because “a lot of what
[Sampson] did actually involved his status as an attorney.” App’x at 1115.
“The determination of whether a defendant utilized a position of trust or
special skill in a manner that significantly facilitated the commission or
concealment of the offense is a question of fact reviewed for clear error.” United
States v. Thorn, 446 F.3d 378, 388 (2d Cir. 2006). Here, the district court did not
49
clearly err in determining that Sampson utilized his “special skill[s]” as an attorney
to “significantly facilitate[]” the commission of the offense. Comment 4 to § 3B1.3
defines “special skill” as “a skill not possessed by members of the general public
and usually requiring substantial education, training, or licensing,” and lists
“lawyers” as a class of individuals possessing a “special skill.” The district court
determined that Sampson relied on his skills as an attorney in his endeavors to
obstruct justice, including: (1) his knowledge of “how criminal cases developed,”
and at what point in the investigatory process “witnesses would be identified”; (2)
his knowledge of how the USAO worked, so that he could give specific directions
to Noel; (3) his knowledge of the criminal justice system so that he could instruct
Flagg accordingly in terms of acquiring information; and (4) his “knowledge and
relationships developed as an attorney in criminal cases” in determining which
attorneys to hire for Ahmad’s co‐defendants. See App’x at 1115–17. The fact that
Sampson’s offenses did not directly relate to his status as an attorney and could
have been committed by a layperson is “immaterial,” because the dispositive
question is simply whether Sampson’s “special skills increase[d] his chances of
succeeding or of avoiding detection.” United States v. Fritzson, 979 F.2d 21, 22 (2d
50
Cir. 1992). We identify no “clear error” in the district court’s answering this
question in the affirmative.
C. Upward Deviation
A sentencing court “has broad latitude to impose either a Guidelines
sentence or a non‐Guidelines sentence.” Ulbricht, 858 F.3d at 123 (internal
quotation marks omitted). The judge may depart upward from a Guidelines range
as long as she “give[s] serious consideration to the extent of any departure from
the Guidelines” and provides an “adequate[] expla[nation]” that “allow[s] for
meaningful appellate review and . . . promote[s] the perception of fair sentencing.”
Gall, 552 U.S. at 46, 50. She “must [also] make an individualized assessment based
on the facts presented,” and consider the factors outlined in 18 U.S.C. § 3553(a). Id.
at 49–50. These factors include “the history and characteristics of the defendant,”
and “the need for the sentence imposed to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the offense.” 18
U.S.C. § 3553(a).
In Sampson’s case, the district court provided ample justification for its
upward deviation, in a statement that spans nine full pages of the sentencing
transcript. See App’x at 1151–60. Among other things, the district court considered:
(1) Sampson’s embezzlement, which the district court believed was time‐barred
51
from prosecution but could nonetheless factor into the analysis as pertaining to
Sampson’s “history”;18 (2) the fact that Sampson breached both the trust of the
New York State Bar and the New York State Supreme Court; (3) Sampson’s failure
to observe his suspension from the Bar even after his conviction and while he was
awaiting sentencing; and (4) Sampson’s abuse of his role as a state senator to
obstruct regulatory investigations of Ahmad’s businesses. The district court
ultimately concluded that “[t]here has to be a sense that we give to the public that
we are going to safeguard the integrity of our system. . . . That we will hold our
public officials to a higher standard, that we will hold our attorneys to a higher
standard.” Id. at 1159–60. This explanation is far more than the “brief statement of
reasons” that generally suffices to enable appellate review of an upward
departure, United States v. Cavera, 550 F.3d 180, 193 (2d Cir. 2008) (en banc), and
because we cannot second guess the district court’s weighing of the relevant
sentencing factors, see United States v. Romano, 794 F.3d 317, 339 (2d Cir. 2015), we
reject Sampson’s argument that the district court failed adequately to justify its
upward deviation.
18 As noted above, in United States v. Sampson, No. 15‐2869‐cr (2d Cir. 2018), we
vacated the district court’s dismissal of the embezzlement counts and reinstated both
counts.
52
D. Unwarranted Disparities
Finally, Sampson argues that there is an unwarranted disparity between his
sentence and the sentence of former New York State Senator Dean Skelos
(“Skelos”), who—in a completely unrelated case—was convicted on eight
corruption counts. 19 This argument is meritless. “Although ‘the need to avoid
unwarranted sentence disparities among defendants with similar records who
have been found guilty of similar conduct’ is a factor district courts must consider”
under 18 U.S.C. § 3553(a)(6) when imposing a sentence, “that provision does not
require a district court to conform its sentence to any single other sentence
adduced by a defendant.” United States v. Halloran, 821 F.3d 321, 341 (2d Cir. 2016);
see also id. (upholding a district court’s decision not to consider “the two‐year
sentence imposed upon former Virginia Governor Bob McDonnell in an unrelated
bribery case in the Eastern District of Virginia”). Indeed, the “primary purpose” of
§ 3553(a)(6) is “to reduce unwarranted sentence disparities” on a nationwide level.
United States v. Johnson, 505 F.3d 120, 123 (2d Cir. 2007) (quoting United States v.
Wills, 476 F.3d 103, 109 (2d Cir. 2007)). Sampson’s opening brief on appeal does
This Court vacated Skelos’s judgment of conviction on September 26, 2017 and
19
remanded for further proceedings in light of the Supreme Court’s decision in McDonnell.
See United States v. Skelos, 707 F. App’x 733 (2d Cir. 2017).
53
not discuss nationwide sentencing disparities, focusing solely on the Skelos
sentence. And although Sampson’s reply brief includes, in a footnote, a statistic on
nationwide sentences for obstruction and federal false statement convictions, it is
well‐settled that we will not usually entertain an argument made for the first time
in a reply brief. See Knipe v. Skinner, 999 F.2d 708, 711 (2d Cir. 1993). Even if we
were to consider, however, the disparity that Sampson alleges between his
sentence here and the purported national average and median sentences that he
points to for obstruction of justice and false statement convictions, we would still
find his argument unavailing. Sampson’s argument gives no weight at all to the
context that renders his crimes particularly worthy of opprobrium: his status as a
lawyer and an elected public servant. The District Court was fully entitled to take
that context into account when determining an appropriate sentence.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s January 27, 2017
judgment of conviction.
54
United States v. Sampson
Court: Court of Appeals for the Second Circuit
Date filed: 2018-08-06
Citations: 898 F.3d 287
Copy CitationsCombined Opinion